Customer agrees and acknowledges the following “Terms and Conditions” which apply to Customer (“Customer “or “You”) for each use of any services available through the Brand Protection portions of the MarkMonitor website:
Brand Management. The brand protection services accessible through the Brand Protection portion of the MarkMonitor website (the “Brand Protection Services”) are available to Customer on an annual subscription basis for the purpose of identifying brand infringements on the Internet. Customer agrees to subscribe to each brand protection module selected by Customer.
Access to MarkMonitor Services. Customer will use login and password information assigned by MarkMonitor to access the Services. Only Customer’s authorized employees may access and use the Services. Customer shall be liable to MarkMonitor for the unauthorized use, misuse or abuse of any user ID or password assigned to Customer.
Pricing. Upon subscribing for any of the Brand Protection Services, Customer agrees to pay MarkMonitor the annual subscription fees and set up fees, if applicable, described in any written agreement or signed Estimate between Customer and MarkMonitor or if no written agreement, then as described in MarkMonitor’s standard price list (the “Fees”). You agree and understand that MarkMonitor may, at any time, without liability, modify the Services and its pricing structure related thereto. Pricing for Brand Protection Services depends upon the number of modules and brands covered under Customer’s account. A ‘brand’ refers to a single brand, product, model, search term, phrase, logo, slogan, keyword, or executive name owned by Customer which will be used to create a scan in the MarkMonitor system. In the event you desire to increase the number of modules or brands under your subscription for Brand Protection Services, you agree to pay MarkMonitor Fees associated with such increase.
Payment. Customer agrees to pay for the Services by means of any payment method acceptable to MarkMonitor. MarkMonitor shall invoice Customer in the total annual amount of the Fees upon commencement of the Services. Payment of invoice is due within 30 days of date of invoice. Late charges of 2% will apply to amounts not received by MarkMonitor by the due date. All Services are non-refundable.
Term. The term of each subscription of Brand Protection Services is one year. Each subscription automatically renews for additional terms of one year each unless either party provides the other party with written notice of termination at least thirty (30) days prior to the end of the then current term of its intent not to renew any of the Services.
Copyright/Trademark/Service Mark. The information available through the Brand Protection Services is the exclusive property of MarkMonitor and is protected by copyright, trademark, service mark, other intellectual property laws and associated common law principles. This protection extends to all areas of MarkMonitor, including both Customer and non-Customer areas. Information received through MarkMonitor may be displayed, reformatted and printed for your use related to the practice of law, protection of your Company’s intellectual property or your personal, non-commercial use only. Furthermore, Customer agrees that it shall not, directly or indirectly, (i) sell, lease, assign, sublicense or otherwise transfer, (ii) duplicate, reproduce or copy, (iii) disclose, divulge or otherwise make available to any third party, (iv) use except as authorized by this Agreement, or (v) decompile, disassemble or otherwise analyze for reverse engineering purposes, the Brand Protection Services, including all trade secrets and confidential information therein. Customer agrees that it shall not permit any third party to have access to the Brand Protection Services or to any trade secrets and/or confidential information therein.
Disclaimer of Warranties. MarkMonitor assumes no liability for any damages suffered by you, including, but not limited to, mistakes, omissions, loss of data, delays in operation or transmission, non-deliveries, deletion of files or e-mail, errors, defects, computer viruses, or service interruptions of any kind, or any failure of performance, communications failure, destruction or unauthorized access to MarkMonitor’s records, program, information or services. MarkMonitor assumes no liability for the quality, accuracy, or validity of the data/information gathered by this service. Use of information gathered through MarkMonitor’s services is at your risk. No oral advice or written information given by MarkMonitor, its employees, agents, or third-party providers shall create a warranty or license; nor shall you be entitled to rely on such information or advice.
MARKMONITOR MAKES NO EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS OF ANY KIND (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE OR NON-INFRINGEMENT, OR THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) WITH REGARD TO ITS SERVICE OR SERVICES ON THE INTERNET GENERALLY. MARKMONITOR SHALL NOT BE LIABLE FOR ANY COST OR DAMAGE ARISING, EITHER DIRECTLY OR INDIRECTLY, FROM YOUR RELIANCE OR USE OF THE SERVICE. YOU ARE ENTIRELY RESPONSIBLE FOR ALL CONTENT THAT YOU UPLOAD, E-MAIL OR OTHERWISE TRANSMIT VIA THE SERVICES. MARKMONITOR DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. MARKMONITOR DOES NOT PROVIDE ANY LEGAL OPINIONS OR LEGAL ADVICE WITH RESPECT TO THE RESULTS OF THE SEARCHES PERFORMED BY MARKMONITOR. MARKMONITOR IS NOT A LAW FIRM AND DOES NOT PROVIDE LEGAL SERVICES OR LEGAL OPINIONS. ANY LEGAL QUESTIONS WITH RESPECT TO INTELLECTUAL PROPERTY LAW SHOULD BE DIRECTED TO LEGAL COUNSEL.
THE AGGREGATE LIABILITY OF MARKMONITOR ARISING OUT OF A CLAIM FOR LOSS RELATED TO THE SERVICES AVAILABLE THROUGH MARKMONITOR SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE SPECIFIC SERVICE AFFECTED BY THE CLAIM. IN NO EVENT SHALL MARKMONITOR BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES ARISING OUT OF MARKMONITOR’S SERVICES, INCLUDING LOST PROFITS, EVEN IF MARKMONITOR HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU
Limitations of Use. You are using the Brand Protection Services on a non transferable, limited, and non-exclusive basis. You agree to conform to applicable local, state and federal laws and regulations. You shall not use or permit the use of the Service in any way that compromises the integrity thereof or infringes any proprietary interests of MarkMonitor. Customer may not publish, broadcast or otherwise redistribute the reports generated through MarkMonitor. Any and all information offered herein by MarkMonitor is the sole and exclusive property of MarkMonitor except to the extent that the information contained therein is in the public domain or is licensed to MarkMonitor by a third party. All right, title, and interest (including all copyrights and other intellectual property rights) in the services provided by MarkMonitor belong to MarkMonitor.
Confidentiality. Customer agrees that, during the Term and thereafter, any information disclosed by MarkMonitor to Customer of a confidential or proprietary nature (“Confidential Information”): (i) will not be disclosed to any third person, unless required by law; (ii) will be treated with a high degree of care in order to preserve its confidentiality; (iii) will not be used except in the performance of the Services hereunder; and (iv) will remain the property of MarkMonitor. These provisions do not apply to information that: (i) is publicly known through no wrongful act of the Customer; (ii) is available to the Customer on a non-confidential basis from a third party; (iii) is independently developed; or (iv) was in the Customer’s possession prior to it being disclosed by MarkMonitor. Customer further agrees that MarkMonitor prices and the related business terms of this Agreement and format of any reports or documents generated hereunder are deemed to be MarkMonitor’s Confidential Information.
Indemnification and Third Party Rights. Customer agrees to indemnify, defend and hold harmless MarkMonitor, its owners, officers, directors, employees, and agents from and against all third-party losses, expenses, damages and costs, including reasonable attorneys’ fees, resulting from (i) any violation of this Agreement, (ii) any shutdown or cease and desist request communicated by Customer to MarkMonitor, or (iii) any unlawful or wrongful activity related to Customer’s account by Customer or any other person accessing the service using Customer’s account. This section is for the benefit of MarkMonitor and its officers, directors, employees, and agents. MarkMonitor shall promptly notify customer of any such claim; and Customer shall control the defense of such claim; provide however, that Customer shall not have any right, without the MarkMonitor’s written consent, to settle any such claim unless such settlement includes a full release of MarkMonitor. MarkMonitor will not be liable in any manner (except for MarkMonitor’s gross negligence) for the shutdown of fraudulent or infringing websites.
Miscellaneous. This Agreement shall be governed by and construed in accordance with the laws of the State of California. This Agreement evidences the entire agreement of the parties, with respect to the subject matter hereof, and supersedes and cancels all prior discussions, agreements and understandings between the parties, written, oral or implied. All notices to MarkMonitor shall be made in writing and shall be sent by mail or fax to: MarkMonitor Inc., 3540 E Longwing Ln #300, Meridian, ID 83642 or by fax to:(208) 389-5797. MarkMonitor may modify this Agreement from time to time upon written or electronic notice to Customer. The failure of MarkMonitor to require Customer’s performance of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by MarkMonitor of a breach of any provision hereof be taken or held to be a waiver of the provision itself. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole. MarkMonitor will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of MarkMonitor as reflected in the original provision. This Agreement does not affect or otherwise modify any other Agreements between Customer and MarkMonitor pertaining to services other than the Services referenced herein.
Data Protection and permitted purpose
When using the Brand Protection Software as a Service, Customer will (and Customer represents and warrants that it will) comply with: (i) the General Data Protection Regulation (2016/679) and any national laws made pursuant to it; and (ii) any other similar national privacy law (together, the “Data Protection Legislation”) in respect of its processing of any personal data (as such term is defined in Data Protection Legislation) made available by or on behalf of MarkMonitor in connection with the Brand Protection Software as a Service.
Customer acknowledges that Whois and Reverse WHOIS information may contain personal data and that, to the extent Customer records and uses that personal data, Customer is a separate data controller of that personal data (and not a joint controller).
Customer will only use the Brand Protection Software as a Service (and any personal data contained in Whois and Reverse WHOIS information) for the following “Permitted Purposes”: (i) to investigate IP infringement, fraud and other improper uses of domain names and connected email addresses, as well as to take enforcement action in relation to such infringement, fraud or improper uses; (ii) to identify the entity or individual that “owns” and controls a domain as part of due diligence undertaken in connection with corporate or financial transactions; or (iii) to comply with a requirement forming part of generally accepted principles of good practice for the furtherance of internet security.
Where required by Data Protection Legislation, Customer will carry out a legitimate interests assessment in respect of the processing by it of personal data contained in Whois and Reverse WHOIS information (including any such data accessed by Customer in connection with the Brand Protection Software as a Service), and shall only carry out the processing of such personal data if the assessment confirms that Customer’s processing complies with the Data Protection Legislation.
MarkMonitor makes available a privacy notice for the Brand Protection Software available on its website in respect of MarkMonitor’s own processing of personal data.