Connectu Media, a Division of Yoursphere Media, Inc.
TERMS AND CONDITIONS
For the avoidance of doubt Connectu Media is an online mobile device communication system (the “System”) that allows clients to communicate with their customers and/or communities (“Services”). The System encompasses:
• Exclusive access for the Client via a secure login to the Internet-based Connectu Media content management system (“CMS”) in order to create and/or upload content for distribution.
• A Connectu Media mobile device app (the “App” developed exclusively for the Client designed to receive content from the Client via the CMS.) The Client’s App will be registered by Connectu Media with both the Apple App Store and Google Play Store to enable free download to both iOS and Android powered mobile devices.
1. Use of Connectu Media
a. In consideration of the fulfilment by the Client of the obligations imposed by this Agreement, we grant you a
personal, non-exclusive, non-assignable and non-transferable license for the Term of this Agreement to use the System and each App solely and strictly for the Client’s own use.
b. Acceptable use – You may use the System and App only in accordance with this Agreement. The Client agrees
not to access (or attempt to access) any part of the System by any means other than through the interface that is provided by Connectu Media; and specifically agrees not to access (or attempt to access) any part of the System through any automated means, including use of scripts, robots, spiders, scrapers or web crawlers. The Client agrees that they will not (a) take any action that imposes, or may impose (in each case in our sole discretion) an unreasonable or disproportionately large load on the System’s infrastructure; (b) copy, duplicate, reproduce, rent, lease, loan, sell, trade, resell, modify, create derivative works (other than Apps) distribute or publicly display any part of the System without prior written consent from Connectu Media and any third party determined as appropriate; (c) interfere or attempt to interfere with the proper working of the System or any activities conducted via the System; (d) bypass any measures to prevent or restrict access to the System; and (e) attempt to reverse engineer, decompile or otherwise seek to obtain access to the source code in the System and/or any App.
c. The Client agrees that they will not engage in any activity that interferes with or disrupts the System, or the servers and networks that are connected to the System.
d. User Content – Connectu Media offers the Client the ability to store information on the System, such as text, images, audio, video etc. (any and all such content, together with all other content provided for use with the System is deemed “User Content”). This facility is provided for convenience only and should not be relied upon as the sole repository of any important information. It is the Client’s responsibility to back-up and keep their own copy of any User Content they wish to keep. Connectu Media cannot be held liable for any loss of User Content. User Content cannot be retrieved and will not be supplied if an account is inactive or terminated. Upon termination of this Agreement, including by the cancelling of the Connectu Media account, the Client will immediately lose access to any stored User Content. Connectu Media will endeavour to retain User Content for at least three months following account closure, however this cannot be guaranteed. Where available, User Content can be recovered during this period by taking out a new subscription.
e. The client agrees that they are solely responsible for any User Content and for the consequences of their actions including any loss or damage that may be suffered.
f. By uploading any User Content the Client represents and warrants that they have the lawful right to reproduce and distribute such User Content and that the uploading, downloading, posting, emailing or transmission by any other means of User Content will not constitute or encourage a criminal offense, violate the rights of any party or otherwise create liability or violate any local, national or international law; and that the User Content posted will not be objectionable, unlawful, harmful, threatening, abusive, vulgar, harassing, defamatory, obscene, pornographic, indecent, inflammatory, libellous, tortious, hateful, or racially, ethnically or otherwise objectionable, or invasive of another’s rights including rights of celebrity, privacy and intellectual property.
g. The Client shall indemnify Connectu Media, without limitation and upon demand, against any cost, damages or expenses (including reasonable legal expenses) that may be incurred by us in respect of any claim or action that the operation or use of any User Content infringes intellectual property rights or is otherwise unlawful or objectionable.
h. The Client grants Connectu Media the right to audit your use of the System, so as to ensure compliance with this Agreement.
i. Connectu Media will take reasonable steps to inform the Client of any suspected breaches or misuse of the System and/or User Content and upon this notification the Client will take urgent steps to remedy any such breach or misuse. However the delay to remedy, or inaction to remedy, or frequent breaches and/or misuse of the system will result in the Client’s account being closed.
j. No refunds will be given for any accounts closed due to breaches and/or misuse.
k. The Client agrees and acknowledges as reasonable that Connectu Media may from time to time use their App and associated User Content created through the System for such promotional and marketing purposes as we in our sole discretion may determine.
l. End User – You control access by your end users, and you are responsible for their use of the System and App in accordance with this Agreement. For example, you will ensure end users comply with the Connectu Media User Guide.
You acknowledge and agree as reasonable that there may be occasions when, due to unforeseen technical difficulties that may affect the Internet in general, or other equipment, Connectu Media may be unavailable. We make no representation that Connectu Media will be available at all times and we accept no liability for any temporary unavailability, for which no refunds will be made.
a. We accept no responsibility for and cannot be held liable for any losses arising from loss of data or the compromising of sensitive data as a result of actions beyond our control, including (but not limited to) hardware failure, software failure, or malicious attacks by third parties. In particular, you understand and acknowledge as reasonable, that we shall not be liable to you for any claim, loss, liability and/or expense whatsoever which directly or indirectly results from the misuse of your data and information provided by you to us provided that this limitation of liability shall not apply to any fraudulent action on our part, or to any type of liability the limitation of which is not permitted by virtue of clause 3.6 of this Agreement.
b. We cannot be held liable for any errors or inaccuracies in our databases, or any loss that may arise from your acting on information provided by us. Inclusion does not constitute recommendation and any action you undertake in relation to any information provided by us is undertaken entirely at your own risk. No refunds can be given for the provision of inaccurate information.
c. Delay in delivery and non-delivery – We will not be liable to you for any delay and/or failure to fulfil any obligation imposed on us by this Agreement where such delay or failure is due to circumstances beyond our control or the control of our sub–contractors and agents, including but not restricted to war, electricity power failure, utilities failure, failure of telecommunications links, failure of transport infrastructure, fire, flood, government act, act of God, legislative constraints, strikes, labour disputes or malicious damage involving employees.
d. To use Connectu Media’s services you will need certain equipment and software not supplied by us. These include a smartphone, tablet, desktop computer, an Internet connection, and the necessary software to browse the Internet and access emails. Connectu Media is designed for and tested on standard hardware/operating systems. Performance on other systems cannot be guaranteed, and you accept and acknowledge as reasonable that we give no representation, warranty and/or undertaking that Connectu Media can be used with any configuration of computer, software, and settings. The necessary programs to utilize Connectu Media are available for free on the Internet, and as such no refund can be made for any failure of your own equipment to receive, process, and correctly display Connectu Media. If you are unable to access all or part of Connectu Media because you do not have access to any necessary software or equipment, this shall not constitute a breach of this Agreement by us and we shall not be liable for any loss, damage or expense which may result from your inability to access Connectu Media.
e. Nothing in this Agreement, including this clause 3, shall exclude or limit any warranty or liability which may not be lawfully excluded or limited by applicable law, including liability for fraud or for death or personal injury caused by our negligence.
f. There are no conditions, warranties, representations or other terms, express or implied, that are binding on us except as specifically stated in this Agreement (including implied warranties and conditions of merchantability, fitness for a particular purpose and non-infringement). Any condition, warranty, representation or other term concerning the supply and/or operation of Connectu Media and/or any App which might otherwise be implied into or incorporated in this Agreement, or any collateral contract, whether by statute, common law or otherwise, is hereby excluded to the fullest extent permitted by law.
g. Except as expressly provided in this Agreement, you expressly understand and so agree that your use of Connectu Media is at your sole risk and that Connectu Media is provided “As Is” and “As Available.”
h. In particular, we, our subsidiaries and affiliates, and our licensors, do not represent or warrant to you that:
i. your use of Connectu Media (including its use in conjunction with any other software) will meet your requirements, that your use of Connectu Media will be uninterrupted, timely, secure or free from error or that defects in the operation or functionality of Connectu Media provided to you will be corrected; and
ii. any information obtained by you as a result of your use of Connectu Media will be accurate or reliable; and
iii. that defects in the operation or functionality of Connectu Media will be corrected, rectified, or remedied.
i. Any material downloaded or otherwise obtained or accessed through the use of Connectu Media is done at your own discretion and risk, and you will be solely responsible for any damage, loss, or prejudice to your computer system or other device or loss of data that result from the download or access of any such material.
j. No advice or information, whether oral or written, obtained by you from us or any of our subsidiaries, affiliates, officials, employees, or personnel from Connectu Media shall create any warranty not expressly stated in this Agreement. We shall not be under any liability whatsoever in respect of any inaccuracies or omissions in Connectu Media. We exclude all such liability to the fullest extent permitted by law.
k. You expressly understand and agree that we and our licensors shall not be liable to you for:
i. any direct, indirect, special, incidental or consequential loss or damage which may arise in respect of Connectu Media, any App and/or its use or non-availability;
ii. loss of profit, business revenue, goodwill and anticipated savings;
iii. any trading or other losses which you may incur as a result of use of or reliance upon any content;
iv. the deletion of, corruption of, or failure to store, any content and other communications data maintained or transmitted by or through your use of Connectu Media and/or any App; or
v. any effect which use of Connectu Media may have on any software you use.
l. Subject to the clauses above, the aggregate liability of us in respect of any loss or damage suffered by you and arising out of or in connection with the use of Connectu Media by you and/or any third party shall not exceed the amount of the total fees actually paid by you to us in the twelve months preceding the date of your claim.
m. You will defend us against any claims made by an unaffiliated third party that (1) any User Content infringes the third party’s intellectual property rights; or (2) arise from violation of the Connectu Media User Guide.
n. Connectu Media uses the Client’s contact details to process orders and to keep the Client informed of its products, updates, etc.;
o. Connectu Media abides by the Data Protection Act 1998 and will not sell or rent the Client’s information to third parties.
p. Except for System and App we license to you, as between the parties, you retain all right, title, and interest in and to User Content. We acquire no rights in the User Content, other than the right to host User Content within the Services, including the right to use and reproduce User Content solely as necessary to provide the Services.
q. We will use User Content only to provide you the Services. This use may include troubleshooting to prevent, find, and fix problems with the operation of the Services. It may also include improving features for finding and protecting against threats to users. We will not use User Content or derive information from it for any advertising or other commercial purposes without your consent.
r. We may hire other companies to provide limited services on our behalf, such as customer support. Any such subcontractors will be permitted to obtain User Content only to deliver the services we have retained them to provide, and they are prohibited from using User Content for any other purpose. We remain responsible for our subcontractors’ compliance with the obligations set forth in this Agreement.
s. We will comply with all laws applicable to our provision of the Services, including applicable security breach notification laws, but not including any laws applicable to you or your industry that are not generally applicable to information technology service providers. You will comply with all laws applicable to your User Content and your use of the Services, including any laws applicable to you or your industry.
4. Intellectual Property
a. While we grant you a license in accordance with clause 2 to use both Connectu Media and each App, these both belong to us (or our licensors). In particular, you do not own any App created for you through your use of Connectu Media, although you (or your licensors) will own any User Content contained in any App. It is important that you understand that when this Agreement terminates, your ability (and any other person’s ability) to use any App created by you will also terminate. We reserve all other rights.
c. Accordingly, you acknowledge and agree that we (or our licensors) own all legal right, title and interest in and to Connectu Media, and in each App, including any intellectual property rights which subsist in Connectu Media and/or any App (whether those rights happen to be registered or not, and wherever in the world those rights may exist), excluding User Content. You further acknowledge that Connectu Media may contain information which is designated confidential by us and that you shall not disclose such information without our prior written consent.
d. Nothing in this Agreement gives you a right to use any of our trade names, trademarks, service marks, logos, domain names, and other distinctive brand features. You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices), which may be affixed to or contained within Connectu Media.
5. Territory and Geographical Coverage
The App will be available from any iOS or Android device with an active Internet connection globally, where local law allows.
We may make changes to the Services from time to time. We will provide you with 30 days prior notice before removing any material feature or functionality, unless security, legal, or system performance considerations require an expedited removal.
7. Supplier Responsibilities
a. Connectu Media will provide and maintain the System used by the Client during the Term.
b. Additionally, Connectu Media will:
i. Ensure the System remains available to the Client in line with or above the uptime levels listed in clause 11.
ii. Respond to relevant support requests within the timescales listed in clause 10.
iii. Take steps to escalate and resolve issues within the timescales listed in clause 10.
iv. Maintain good communication as and when required by the Client throughout the Term.
v. From time to time upgrade the CMS and Apps in line with developments in the marketplace and with upstream software upgrades such as iOS and Android, etc. We will notify the Client in advance when these upgrades are due to take place.
8. Client Responsibilities
a. The Client is required to use the System as intended. (As detailed in the Connectu Media User Guide, supplied to clients on receipt of a signed purchase order).
b. Additionally, the client will:
i. Notify Connectu Media of issues or problems in a timely manner.
9. Support Availability
a. Support availability specific to the services covered in this Agreement are as follows:
i. Telephone support: 08:30 to 4:30 Monday – Friday
Calls received out of office hours will be forwarded to a mobile phone and best efforts will be made to answer/action the call.
ii. Email Support: 08:30 to 4:30 Monday – Friday
Emails received outside of office hours will be collected, however no action can be guaranteed until
the next working day.
10. Guaranteed Uptime/Response & Resolution
a. It is intended that the Connectu Media System will operate 24/7. However as with the majority of Internet and IT based systems there are occasional outages and downtimes often beyond the operational control of Connectu Media.
b. In order to ensure that the System is operationally effective for the Client Connectu Media has agreements in place with its suppliers and therefore guarantees that the System will be available for a certain minimum percentage of time throughout each year – see below.
Service Guaranteed Uptime
Connectu Media Portal CMS 99%
Customer App 98%
c. If the System suffers an outage or is down for more than the guaranteed uptime in any one-year period, Connectu Media will compensate the Client on a pro-rata timed basis (this is related to the annual subscription fee) for any time over and above the Guaranteed Uptime.
d. If the system is unavailable or has technical issues, that Connectu Media is responsible for, then the resolution period is one week or less for each occurrence. If the System is down for longer than seventy-two (72) hours then Connectu Media will refund the relevant proportion of your annual subscription for each day and part thereof, excluding the first 3 days/72 hours.
e. Downtime will be measured at the end of each subscription year and will automatically be credited back to your bank account in the event that compensation is due.
f. This limited guarantee is subject to the following limitations:
i. this does not cover problems caused by accident, abuse, or use of the Services by Client in a manner inconsistent with this Agreement or our published documentation or guidance, or resulting from events beyond our reasonable control; and
ii. this does not apply to problems caused by any failure to meet minimum system requirements by Client.
11. Cancellation, Termination and Suspension
a. The Client has the right to cancel within 7 working days from the App Live Date in the various online stores – this date will be notified to the Client by Connectu Media. In this case the Deposit paid is not refundable due to the work that has gone into developing the CMS and App for the Client.
b. Beyond 7 days from the App going live the Client may cancel their subscription at any time in writing.
c. Connectu Media reserves the right to close any account and/or to terminate any Subscription and/or to suspend the availability of Connectu Media immediately and without notice if (I) bankruptcy or other insolvency proceedings are brought against the Client, (ii) you are unable to pay your debts as they fall due, fail to make payments which become due, (iii) you are no longer able lawfully to access Connectu Media services. In the event that access to the CMS is stopped for whatever reason, any information, which is stored about the Client, and/or any nominated user(s) on our CMS will be deleted.
d. On termination of the Agreement at the termination date and/or within 30 days of non-payment of the subscription fees during the Term, Connectu Media will have the right to terminate the Client’s access to the CMS. Connectu Media will however make a reasonable attempt to contact the Client in advance of this action to confirm the situation.
e. Connectu Media will be responsible for contacting the Client not less than 3 months prior to end of the Term to discuss the renewal of the Agreement.
f. You may extract and/or delete User Content at any time. When a Subscription expires or terminates, we will retain any User Content you have not deleted for at least three months so that you may extract it, where we may delete User Content immediately without any retention period. You remain responsible for all storage and other applicable charges during this retention period. Following the expiration of this retention period, we will delete all User Content, including any cached or back-up copies, within 30 days of the end of the retention period. You agree that we have no additional obligation to continue to hold, export or return User Content and that we have no liability whatsoever for deletion of User Content pursuant to these terms.
g. We may suspend your use of the Services if: (1) it is reasonably needed to prevent unauthorized access to User Content; (2) you fail to respond to a claim of alleged infringement under Clause 3.14 within a reasonable time; (3) you do not pay amounts due under this Agreement; and/or (4) you do not abide by the Connectu Media User Guide or you violate other terms of this Agreement. If one or more of these conditions occurs, then a suspension will apply to the minimum necessary part of the Services and will be in effect only while the condition or need exists. We will give notice before we suspend, except where we reasonably believe we need to suspend immediately. We will give at least 15 days’ notice before suspending for non-payment. If you do not fully address the reasons for the suspension within 30 days after we suspend, we may terminate your Subscription and delete your User Content without any retention period. We may also terminate your account if your use of the Services is suspended more than twice in any 12-month period.
a. Connectu Media strives to do everything possible to rectify every issue to our Services in a timely manner. However, this Agreement does not apply to:
i. Any software or services not described in this Agreement.
ii. Software, hardware and services not managed by Connectu Media.
b. Additionally, the terms of this Agreement do not apply when:
i. The Client has made unauthorized changes to the configuration or set up of affected equipment, software or services.
ii. The Client has prevented the supplier from performing required maintenance and updates.
iii. The issue has been caused by unsupported equipment, software or other services.
a. Both Parties declare that during this Agreement and after its termination, to observe secrecy with regard to all confidential information granted by the opposite party in the context of their cooperation.
b. Confidential information consists, but is not limited to company and/or financial data, specifications, software programs, examples, pictures, diagrams, drawings and/or other documents as well as oral given information by presentation, demonstration or otherwise, both in material and immaterial appearance.
c. Confidential Information is also information:
i. Which the confidential nature is made known to the receiving party; or
ii. When the receiving party knows or should reasonably know that the information has a confidential
d. Both parties hereby declare that they will take reasonable measures to ensure secrecy of confidential information. Both parties shall keep their circle of employees or third persons that have access to the received confidential information, as restricted as possible and parties shall also obligate their employees and third parties concerned, to maintain secrecy.
14. Limitation of Liability
a. The aggregate liability of each party under this Agreement is limited to direct damages up to the amount paid under this Agreement for the Services giving rise to that liability during the 12 months before the liability arose.
b. TO THE EXTENT PROVIDED BY LAW, NEITHER PARTY WILL BE LIABLE FOR INDIRECT, SPECIAL,
INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR DAMAGES FOR LOST PROFITS,
REVENUES, BUSINESS INTERRUPTIONS OR LOSS OF BUSINESS INFORMATION, EVEN IF THE PARTY
KNEW THAT SUCH DAMAGES WERE POSSIBLE.
15. Force Majeure
Notwithstanding anything contained in these terms and conditions we shall not be liable for failure or delay in performing any of our obligations because of any cause beyond our reasonable control (including but not limited to (i) decision of any court or other judicial body of competent jurisdiction, (ii) unavailability of equipment, power, or other commodity, (iii) failure or non-availability of Internet or telecommunications facilities, computer hardware or software, (iv) act of God, war, riot, terrorist attack, civil commotion, malicious damage, fires, flood, or storm (v) strikes or other industrial disputes (whether involving our workforce or that of any other party) or (vi) acts of government or other prevailing authorities or default of suppliers, sub-contractors, or other third parties.
a. Notices – You agree to receive electronic notices from us, which will be sent by email to the account administrator you specify in the account. Notices are effective on the date on the return receipt or, for email, when sent. You are responsible for ensuring that the account administrator email address that you specify in the account is accurate and current, and you agree that any email notice that we send to such email address will be effective when sent, whether or not you actually receive the email.
b. Assignment – You may not assign this Agreement either in whole or in part without our prior consent, but may be assigned by Connectu Media without restriction.
c. Severability – If any part of this Agreement is held unenforceable, the rest remains in full force and effect.
d. Waiver – Failure to enforce any provision of this Agreement will not constitute a waiver.
e. No agency – You and Connectu Media are independent contractors. This Agreement does not create an agency, partnership, or joint venture.
f. No third-party beneficiaries – There are no third-party beneficiaries to this Agreement.
g. Applicable law and venue – This Agreement is governed by State of California law, without regard to its conflict of laws principles. Exclusively a court of competent jurisdiction located in Sacramento County, California shall decide any claim or dispute between you and Connectu Media that arises, in whole or in part from this Agreement. This choice of jurisdiction does not prevent either party from seeking injunctive relief in any appropriate jurisdiction with respect to violation of intellectual property rights.
h. Entire agreement – This Agreement is the entire agreement concerning its subject matter and supersedes any prior or concurrent communications.
i. Survival – The following provisions will survive this Agreement’s termination or expiration: Clauses 3, 5, and 14.
j. U.S. export jurisdiction – The System and App is subject to U.S. export jurisdiction. You must comply with all applicable laws, including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, and end-user, end-use and destination restrictions issued by U.S. and other governments.
k. Amendment- No change, amendment or modification of any provision of this Agreement will be valid unless set forth in a written instrument signed by the duly authorized representatives of both parties.
l. Contracting Authority – If you are an individual accepting these terms on behalf of an entity, you represent that you have the legal authority to enter into this Agreement on that entity’s behalf.
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