You are being given an early opportunity to speak with a digital representation of a celebrity and to see new technology, your participation will help us make the product better. This means we will be constantly making improvements to the product, both through learning and incorporating feedback.
Information we collect:
- We will ask you to create a user account with an email address and a location.
- We are only able to offer services in certain locations and based on IST timing.
- Once you have an account, we will capture audio, images, video and text inputs from you via your computer or mobile device while using our app.
What we will do with this information:
- We will use your account information to identify you as you use the technology.
- We will use your audio and video in order for you to hold conversations with the celebrity’s digital representation.
- This means that we will analyze and respond to your audio and video.
- A human may observe the interaction remotely during or after the conversation for safety and training purposes.
- We will store the data and use it for future research and development.
- We may contact you about additional early opportunities to use our products, or for feedback.
Right to delete data:
- You may request to have your data deleted any time. If you wish to do so, please email [email protected].
How we ensure your privacy:
- We will not share your recordings, likeness, or personal information with anyone.
- We use industry standard security and encryption for all of our services.
- All employees, contractors and third-party services have a strict obligation of confidentiality and meet the same standards.
- We may publish research reports that include your comments and actions but your data will be anonymous. This means your name, email address and identity will not be linked in our research reports to anything you say or do.
- We may share anonymous data with the celebrity you interact with.
What we need from you:
- Your agreement to keep this confidential, this is a new technology, and we and the celebrity that invited you want to make sure that you don’t share this with the world until we are ready.
- Your consent to the terms of service
This Non-Disclosure Agreement (this “Agreement”) is made as of the date signed (“Effective Date”) between Media Test Drive, a Delaware corporation (“Media Test Drive” or “Disclosing Party”), and the undersigned, (“Receiving Party”). Media Test Drive and Receiving Party may be referred to individually as a “Party” and collectively as the “Parties.” In order to pursue the creation and management of a relationship between the Parties, both Parties recognize that there may be a need for disclosure of certain Confidential Information (as defined below). In order to protect such Confidential Information from unauthorized use and disclosure, each Party agrees as follows:
- “Confidential Information” means any non-public information of Disclosing Party or any of its affiliates that is disclosed or otherwise made available by or on behalf of Disclosing Party to the Receiving Party, before or after the Effective Date and whether orally, visually, electronically, in writing or in any other form, including, without limitation, (i) the existence and terms of this Agreement, (ii) and information about the Disclosing Party’s technology, products, properties, employees, finances, businesses and operations, and (iii) trade secrets; proprietary and confidential information; ideas; media; techniques; reports; works of authorship; models; inventions; know-how; processes; physical and chemical characteristics of compounds and products; past and projected financial information; procurement requirements; employees (including, but not limited to, the names, contact information, jobs, compensation, and expertise of such employees, consultants, or advisors); business and contractual relationships; past, present and projected business forecasts, budgets, reports, methods practices and models; sales and merchandising; and marketing plans, strategies and materials. Confidential Information includes all notes, analyses, compilations, interpretations or other documents prepared by or for the Receiving Party, to the extent they contain, reflect or are based upon the Disclosing Party’s Confidential Information. Without limiting the foregoing, Confidential Information also includes all other information that the Receiving Party knew, or reasonably should have known, was the Confidential Information of the Disclosing Party. “Representative” means a Disclosing Party, its controlled subsidiaries, and its and their respective officers, directors, employees, consultants and agents (including, without limitation, attorneys, accountants, investment bankers or other professional advisors). Neither Party shall disclose or otherwise make available any personally identifiable information or protected health information in connection with this Agreement.
- Notwithstanding any other provision in this Agreement or any marking, designation or claims of confidentiality, the term “Confidential Information” does not include any of following, and the Receiving Party will not have any obligations under this Agreement with respect to any such listed items or a specific portion thereof: (i) information that was in the public domain at the time it was disclosed to the Receiving Party, or information that is or becomes generally available to the public, through no act or omission of the Receiving Party or its Representatives; (ii) information that was already known by the Receiving Party without any obligation of confidentiality; (iii) information that is lawfully disclosed by a third party to the Receiving Party without any obligation of confidentiality; or (iv) information that is independently created, developed, acquired or prepared by the Receiving Party or its Representatives without use of or reference to any Confidential Information of the Disclosing Party.
- The Receiving Party shall: (i) maintain the Disclosing Party’s Confidential Information in strict confidence using the same degree of care that it uses with regard to its own information of like nature, but in no event less than a reasonable degree of care; (ii) not disclose or make available Confidential Information of the Disclosing Party except as authorized herein; and (iii) not to use any such Confidential Information other than for the Purpose. The Receiving Party may disclose the Disclosing Party’s Confidential Information only to its Representatives who have a need to know for, and solely to the extent necessary to pursue, the Purpose, provided that: (a) each Representative is bound by written obligations of confidentiality (including, without limitation, with respect to non-use and non-disclosure) at least as protective of the Disclosing Party’s Confidential Information as those contained in this Agreement; or (b) the Receiving Party informs each Representative of the confidential nature of the Confidential Information. The Receiving Party shall be responsible for any breach of or non-compliance with this Agreement by its Representatives.
- The Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent required by any applicable law or regulation, provided that the Receiving Party, to the extent legally permissible, gives the Disclosing Party advance written notice of such required disclosure. The Disclosing Party may then either seek appropriate protective relief from all or part of such request or requirement or waive compliance with the provisions of this Agreement with respect to all or part of such request or requirement. The Receiving Party agrees to cooperate with the Disclosing Party in attempting to obtain, at the expense of the Disclosing Party, any protective relief that the Disclosing Party chooses to seek. In any event, the Receiving Party shall only disclose that portion of the Disclosing Party’s Confidential Information which, based on the reasonable advice of counsel, is legally required to be disclosed.
- All Confidential Information remains the sole and exclusive property of the Disclosing Party. The Receiving Party acknowledges and agrees that nothing in this Agreement will be construed as granting any rights (including, without limitation, any patent, copyright or other intellectual property or proprietary right) to the Receiving Party, by license or otherwise, in or to any Confidential Information of the Disclosing Party, except as expressly set forth in this Agreement.
- ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”.
- Each Receiving Party acknowledges that the unauthorized use or disclosure of the Disclosing Party’s Confidential Information would cause the Disclosing Party to incur irreparable harm and significant damages, the degree of which may be difficult to ascertain. Accordingly, the Receiving Party agrees that the Disclosing Party will have the right to seek equitable relief, without having to post any bond or security of any kind, in connection with any unauthorized use or disclosure of its Confidential Information, in addition to any other rights and remedies that it may have at law or otherwise.
- This Agreement will remain in effect for a period of two (2) years from the Effective Date. Receiving Party’s obligations of confidentiality (including, without limitation, with respect to non-use and non-disclosure) under this Agreement with respect to Disclosing Party’s Confidential Information shall survive for three (3) years after the expiration of this Agreement. Neither Party shall have any obligation to disclose any Confidential Information or to enter discussions relating to, or enter into or continue any arrangement or agreement relating to, the Purpose or any other matter, except as agreed to in writing by the Parties. Notwithstanding the foregoing, any Confidential Information constituting a trade secret under applicable law shall continue to remain subject to the obligations of this Agreement for as long as such information remains a trade secret.
- Upon the Disclosing Party’s request, and in any event, upon the expiration of this Agreement, the Receiving Party will return, or at the Disclosing Party’s election destroy, all Confidential Information of the Disclosing Party and all copies thereof (including electronic copies), and, if requested by the Disclosing Party, shall certify in writing the completion of such return or destruction. Notwithstanding the foregoing, the Receiving Party may retain copies of the Disclosing Party’s Confidential Information solely to the extent (i) required by applicable law or regulation, or (ii) created by technical, automatic archiving or backup processes maintained in the ordinary course of business, provided that, in each case, Receiving Party’s obligations under this Agreement with respect to such Confidential Information shall survive indefinitely.
- Each Party represents and warrants that: (i) it has the full right, power, and authority to enter into this Agreement and to perform its obligations hereunder without notice to or the consent of any other Party; (ii) this Agreement is valid, binding, and enforceable in accordance with its terms; and (iii) the execution, delivery, and performance of this Agreement does not conflict with any agreement or instrument to which it is a party, nor any law or regulation of any court, governmental body, or administrative or other agency having jurisdiction over the Party.
- This Agreement will be governed and construed in accordance with the laws of the State of California without regard to its conflict of laws principles. Any dispute, claim, or controversy arising from or relating to this Agreement will be settled by binding arbitration conducted by JAMS in accordance with JAMS Comprehensive Arbitration Rules and Procedures (the “Rules”). The arbitration will be heard by one arbitrator, to be selected in accordance with the Rules, in Orange County, California. Judgment upon any award rendered may be entered in any court having jurisdiction thereof. Within seven (7) calendar days after appointment, the arbitrator will set the hearing date, which will be within ninety (90) calendar days after the filing date of the demand for arbitration unless a later date is required for good cause shown, and will order a mutual exchange of what he or she determines to be relevant documents and the dates thereafter for the taking of up to a maximum of five (5) depositions by each Party to last no more than two (2) days in aggregate for each Party. The arbitrator will have the power to award reasonable attorneys’ fees and costs to the prevailing party. The arbitrator will make his or her award no later than seven (7) calendar days after the close of evidence or the submission of final briefs, whichever occurs later. The decision of the arbitrator will be final and conclusive upon all Parties. Notwithstanding anything to the contrary, if either Party desires to seek injunctive or other equitable relief that does not involve the payment of money, then those claims will be brought exclusively in a state or federal court located in San Francisco, California, and the Parties hereby irrevocably and unconditionally consent to the exclusive personal jurisdiction of such courts and venue in San Francisco, California in any such action for injunctive or other equitable relief and waive and waive any other venue to which it might be entitled.
- In the event any litigation, arbitration, or other proceedings (“Proceeding”) is initiated by any Party against any other Party to enforce, interpret or otherwise obtain judicial or quasi-judicial relief in connection with this Agreement, the prevailing Party in such Proceeding will be entitled to recover from the other party all costs, expenses, actual attorneys’ and expert witness fees, relating to or arising out of: (i) such Proceeding (whether or not such Proceeding proceeds to judgment); and (ii) any post-judgment or post-award proceeding including without limitation one to enforce any judgment or award resulting from any such Proceeding. Any such judgment or award will contain a specific provision for the recovery of all such subsequently incurred costs, expenses, actual attorneys’ and expert witness fees.
- This Agreement is the complete and exclusive statement regarding the subject matter of this Agreement and supersedes all prior agreements, understandings and communications, oral or written, between the Parties regarding the subject matter of this Agreement. This Agreement may not be modified or amended unless in writing and signed by all parties. Neither Party may assign this Agreement, in whole or in part, without the other Party’s prior written consent, and any attempted assignment without such consent will be void. This Agreement may be executed in counterparts, each of which is deemed an original and all of which together constitute one document. Each provision of this Agreement is valid and enforceable to the fullest extent permitted by law. If any provision of this Agreement is found to be unenforceable or invalid, that finding will not render the rest of the Agreement unenforceable or invalid. No waiver of any rights under this Agreement will be effective unless in writing and signed by a duly authorized representative of each Party hereto. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All notices or reports permitted or required under this Agreement will be in writing and will be delivered by personal delivery, electronic mail, or certified or registered mail, return receipt requested, and will be deemed given upon personal delivery, five days after deposit in the mail, or upon valid transmission through electronic mail. Notices will be sent to the addresses set forth at the end of this Agreement or such other address as either Party may specify in writing.
- Each Party acknowledges that it is aware and that it has advised or will advise its Representatives who have access to the Confidential Information, that the United States securities laws prohibit any person who has material, nonpublic information concerning a public company from purchasing or selling securities of such company.
IN WITNESS WHEREOF, the Receiving Party hereto has executed this Non-Disclosure Agreement.
- Printed Name:
- Terms of Service
- Media Test Drive
- User Terms of Service
- Last Updated: June 4, 2020
If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at: [email protected]
PLEASE READ THIS AGREEMENT CAREFULLY. IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR ACCESS AND USE OF THE MEDIA TEST DRIVE PLATFORM AND SERVICES. THESE TERMS LIMIT OUR LIABILITY TO YOU, REQUIRE YOU TO ARBITRATE ANY DISPUTES YOU HAVE WITH US AND YOU WAIVE THE ABILITY TO BRING CLAIMS AGAINST US IN A CLASS ACTION FORMAT.
These Terms of Service (“Terms” or “Agreement”) govern your access to and use of services made available by Media Test Drive, a Delaware corporation and/or any of its affiliated entities (collectively, “Media Test Drive”, “we”, “us” and “our”) online and/or through our applications and mobile or other versions of our application(s) (collectively, the “Applications”) and the software, technical and communications platform(s), available from us on and through the Applications, or made available through other electronic means or mediums (collectively, the “Platform”). In this Agreement, the terms “you”, “your” and “User” refer to you. If you are entering into these Terms on behalf of an organization, you are agreeing to these terms for that organization and representing to us that you have the authority to bind the organization to these Terms (in which case the terms “you”, “your” and “User” will refer to that organization). If you do not have such authority or if you do not agree to these Terms, you must not access or use the Services.
When we refer to “Services” in these Terms, we are referring to the personal medium platform services we make available to you to permit you to access and interact with one or more digital representations of another person (“Digital Representation”), including the Applications, the Platform, programs, features, functions, reports, instructions, or other software made available to you in connection with your use of our services, any tools we make available that may be used by you to monitor the Platform and or provide data to the Platform, and any other services we provide that are related to our Applications and the Platform. Our Services may be used by you to communicate with us and/or one or more Digital Representation’s , other users or our partners or by us, our partners, customers and other third parties to communicate with you through the Applications, the Platform, or via email or other electronic means. These communications can include those related to or arising from your use of the Services, communications specific to your account, communications related to the status of our Services, or our and our partners’ marketing or promotional communications, all of which we refer to collectively as “Communications”.
TO BE ELIGIBLE TO USE OUR SERVICES, YOU MUST REVIEW AND ACCEPT THE TERMS OF THIS AGREEMENT BY CLICKING ON THE “I ACCEPT” BUTTON OR OTHER MECHANISM PROVIDED. PLEASE REVIEW THESE TERMS CAREFULLY. ONCE ACCEPTED, THESE TERMS BECOME A BINDING LEGAL COMMITMENT BETWEEN YOU AND MEDIA TEST DRIVE. WITHOUT THE CONDITIONS THAT ARE SET FORTH IN THESE TERMS, MEDIA TEST DRIVE WOULD NOT MAKE THE SERVICES AVAILABLE TO YOU. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU SHOULD NOT CLICK THE “I ACCEPT” BUTTON AND YOU ARE NOT AUTHORIZED TO USE OUR SERVICES.
- General Terms and Conditions
- Changes to Terms
We may revise these Terms from time to time. If we do, those revised Terms will supersede prior versions. You agree that we may notify you of changes to these Terms via email to the email address we have on file for you or by posting the revised Terms on the Applications or the Platform (or in any other reasonable manner of notice which we elect). You agree that your use of the Platform and our Services after such notice constitutes your acceptance of any changes to the Terms. You should review the posted Terms of Service each time you use the Services. The new terms will be effective as to new use as of the time that we post them, or such later date as may be specified in them or in other notice to you. However, the terms of service that applied when you previously used the Platform and Services will continue to apply to such prior use unless mutually agreed. In the event any notice to you of new, revised or additional terms is determined by a tribunal to be insufficient, the prior agreement shall continue until sufficient notice to establish a new agreement occurs. You can reject any new, revised or additional terms contained in the Terms by discontinuing your use of the Platform and Services.
1. Access and Use of Our Services: To access and use the Services, you must be at least eighteen (18) years old or the applicable age of majority in your jurisdiction of residence and, if applicable, authorized to bind the organization on whose behalf you are accessing and using our Services. You are responsible for obtaining and maintaining all equipment and software and all internet service provider and other services needed for your access to and use of the Services and you will be responsible for all charges related to them. You are solely responsible for your use of the Services and for all use (whether or not authorized by you) of our Services that occurs under any of your accounts with us. You acknowledge that we may use a third party hosting providers to host any portion(s) of the Services.
The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13. We do not knowingly collect or solicit personally identifiable information from children under 13; if you are a child under 13, please do not attempt to register for the Services or send any personal information about yourself to us. If we learn we have collected personal information from a child under 13, we will delete that information as quickly as possible. If you believe that a child under 13 may have provided us with personal information, please contact us at [email protected] to Our Services
The features and functions of our Services, including the Platform and the Applications, may change over time. We may immediately suspend or terminate the Services, including the availability of the Platform and the Applications, in whole or in part, for any reason, in our sole discretion, without advance notice or liability.
3. Jurisdiction: The Services are controlled and operated by Media Test Drive from its offices in California, United States of America. We make no representation that your use of the Services is appropriate, lawful or available for use in any locations outside the United States. If you access or use our Services outside the United States, you do so at your own risk. You are responsible for compliance with all applicable laws and regulations regarding your online conduct and acceptable content. We reserve the right to limit the availability of the Services, including the Platform, the Applications and/or the provision of any content, program, product, service, or other feature described or available as part of the Services to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service, or other feature that we provide.
- Accounts, Account Use, Security and Suspension
- Opening and Terminating Accounts
In order to access or use our Services, you will be required to first register for an account through the Platform. When registering for an account, you must provide true, accurate, current and complete information as requested during the account registration process. Subject to your obligations to us pursuant to these Terms, you have the right, at any time and for any reason, to terminate your account and cease your use of the Services.
4. Suspension or Termination of Services: We may, directly or indirectly, and by any lawful means, suspend, terminate or otherwise deny you access to or use of all or any part of the Services, without incurring any resulting obligation or liability, without prior warning for any reason, including, without limitation, if: (a) we receive a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires us to do so; or (b) we believe, in our sole discretion, that: (i) you or any user of your account(s) has failed to comply with any of these Terms, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under these Terms or in any manner that does not comply with any of our instructions or requirements; (ii) you or any user of your account(s) is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities; (iii) we believe your conduct is harmful to the interests of Media Test Drive, its partners or its customers; (iv) you terminate the Services; or (v) you do not access and use the Services at least 12 times in any twelve month period beginning with the one year anniversary of the date you register for an account with us. Any such termination or suspension may occur immediately without notice to you and without any liability to you or any third party. We reserve the sole discretion and right to permanently delete any and all data stored in your account immediately after your account is terminated for any reason. This Section 2.B does not limit any of our other rights or remedies, whether at law, in equity or under these Terms.
5. Security: You are solely responsible for the security of your account(s), all use (whether or not authorized) of the Services under your account(s), any log-in credentials. You agree to take all reasonable precautions to prevent unauthorized access to your account(s), log-in credentials, the Applications, the Platform and the Services. If your account has been compromised you agree to contact [email protected] as soon as you are aware of such compromise. You will also contact [email protected] if you suspect or know of any unauthorized use of your log-in credentials or any other breach of security with respect to your account(s). Media Test Drive will not be liable for any charges incurred, loss or damage arising from unauthorized access to or use of your log-in credentials and account(s).
6. Accuracy of Information: Anytime we request information you will provide us with true, accurate, current, and complete information. If any of that information changes, you will update it with us as soon as possible. We have the right to suspend or terminate your access to the Services if you fail to provide us with accurate, current and complete information, or fail to update your information in a timely manner.
7. Use of the Services: You agree to assume full responsibility and accept the legal consequences of any action by you or anyone using your account(s) (whether authorized or unauthorized by you) or accessing the Services, including the Platform, on your behalf. You represent, warrant, and covenant that when using the Services, including to send or receive Communications, you will comply with all applicable international, federal, state, and local laws, regulations, and rules. Media Test Drive is not responsible for your acts or omission or the acts or omissions of any other person arising from or in connection with your use of the Services.
8. Restrictions on Use of the Services: Without limiting any other provisions of these Terms, when using the Services, you agree not to (and will not to attempt to):
- use the Services to transmit any material that is, facilitates, or encourages libellous, defamatory, discriminatory, or otherwise malicious or harmful speech or acts to any person or entity, including but not limited to hate speech, and any other material that we reasonably believe degrades, intimidates, incites violence against or encourages prejudicial action against anyone based on age, gender, race, ethnicity, national origin, religion, sexual orientation, disability, geographic location or other protected category;
- use the Services to transmit any material or content that is offensive, inappropriate, pornographic, obscene or otherwise objectionable to any person or entity;
- use the Services in connection with unsolicited or harassing messages (commercial or otherwise);
- reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code related to the Services, including the Applications and the Platform;
- use any device, software or routine to interfere or attempt to interfere with the proper working of the Services, or any activity conducted on the Applications and the Platform;
- delete or alter any of Our Content or other material Media Test Drive makes available on the Applications and the Platform;
- frame or link to any of the materials or information available on the Applications and the Platform, or otherwise use or exploit any of our Intellectual Property Rights or Our Content in any manner that is not expressly authorized by these Terms;
- access, tamper with or use non-public areas of the Applications and the Platform, our (and those of any hosting service providers we may use) computer systems and infrastructure, or the technical delivery systems of our providers;
- gain unauthorized access to the Services or personally identifiable information available through the Services, or to other computers or websites connected or linked to the Services;
- attempt to bypass or break any security mechanism on any of the Services or use the Services in any other manner that poses a material security or service risk to us, our service providers or our partners, customers or other users;
- launch or facilitate, whether intentionally or unintentionally, a denial of service attack on any of the Services, or any other conduct that materially and adversely impacts the availability, reliability, or stability of the Services;
- Transmit any material that contains viruses, Trojan horses, spyware, worms or any other malicious, harmful, or deleterious programs;
- Engage in any unsolicited advertising, marketing or other activities prohibited by applicable law or regulation covering anti-spam, data protection, or privacy legislation in any applicable jurisdiction;
- Use the Services to engage in fraudulent activity, or to encourage any illegal, fraudulent, abusive, or other activities, or interfere with our business or activities or the business of our service providers, or for any other unauthorized purpose;
- Violate or facilitate the violation of any local, state, federal, or foreign law or regulation, including, but not limited to, laws and regulations regarding the transmission of data, software or personal information;
- Use the Services to transmit any material that infringes the intellectual property rights or other rights of third parties;
- Create a false identity or impersonate another person or entity in any way, or otherwise attempt to mislead others as to your identity; or
- Assist any person in engaging in any of the activities described above.
- Data and Intellectual Property Rights
- Certain Definitions
As used in these Terms:
- “Our Content” means (i) our materials and other items relating to the Services, including the Platform and the Applications, and similar items from our licensors, partners, customers and other third parties, including all software, layout, information, text, data, files, images, scripts, designs, graphics, button icons, instructions, illustrations, photographs, audio clips, music, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Platform, and the compilation, assembly, and arrangement of the materials of the Platform and any/all copyrightable material (including source and object code); and (ii) our trademarks, trade dress, logos, trade names, service marks, and trade identities and similar items from our licensors, partners, customers and other third parties.
- “Intellectual Property Rights” means registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
- “Process” means to take any action or perform any operation or set of operations or perform on any data, information or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalogue, cross-reference, manage, maintain, copy, adapt, alter, translate or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or block, erase or destroy. “Processing” and “Processed” have correlative meanings.
- “Resultant Data” means information, data and other content that is derived by or through the Services from Processing User Data and is sufficiently different from such User Data that such User Data cannot be reverse-engineered or otherwise identified from the inspection, analysis or further Processing of such information, data or content, including any unidentifiable meta-data derived from User Data as an integral process of the machine learning and analytics aspects of the Platform, Applications and Services.
- Ownership: Nothing in these Terms grants you any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to the Services, including the Applications, the Platform and Our Content, whether expressly, by implication, estoppel or otherwise. As between you and Media Test Drive, all right, title and interest in and to the Services, Applications, Platform, Our Content, and all software, source and object code in raw form, is and will remain with Media Test Drive.
- Authorization: During the term of your authorized use of the Services, we will make the Services available to you on a non-exclusive basis for your use following these Terms. Subject to your strict compliance with these Terms, Media Test Drive grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable authorization to access and use the Services for your personal use only. The foregoing authorization does not give you any ownership of, license to, or any other intellectual property interest in, any of the Services, including the Platform, the Applications and Our Content, and may be immediately suspended or terminated for any reason, in our sole discretion, and without advance notice or liability.
- Third-Party Services
- Linked Services
- The Services may contain links, utilize the services of third-party service providers, or contain features designed to interoperate with the Services (“Linked Services”). To use such features, you (or we, on your behalf) may be required to obtain access to such Linked Services from the third-party service provider. If the provider of any such Linked Services ceases to make the Linked Services available for interoperation with the Services on reasonable terms, we may cease providing such features. We may have no control over the content, operations, policies, terms, or other elements of Linked Services, and we do not assume any obligation to review any Linked Services. We do not endorse, approve, or sponsor any Linked Services, or any third-party content, advertising, information, materials, products, services, or other items. We are not responsible for the quality or delivery of the products or services offered, accessed, obtained by or from, or advertised by any third parties in connection with the Services, including the Linked Services. We will under no circumstances be liable for any direct, indirect, incidental or special loss or other damage, whether arising from negligence, breach of contract, defamation, infringement of copyright or other intellectual property rights, caused by the exhibition, distribution or exploitation of any information or content contained within any Linked Services, including without limitation any Linked Services we access on your behalf. Any activities in which you engage in connection with any Linked Services may be subject to privacy and other policies, terms and conditions of use and/or sale, and rules issued by the operator of the Linked Services. You are solely responsible for compliance with these third party policies, terms and rules.
- Dealings with Third Parties: Any interactions, correspondence, transactions, and other dealings that you have with any third parties found on or through the Services are solely between you and the third party (including issues related to the content of third-party advertisements, payments, delivery of goods, warranties (including product warranties), privacy and data security, and the like). We disclaim all liability in connection therewith.
- Feedback: You agree that submission of any ideas, suggestions, documents, and/or proposals (“Feedback”) is at your own risk and that we have no obligations (including without limitation obligations of confidentiality) concerning such Feedback. By sending or giving Feedback to us, you agree that we have no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason. Feedback is provided on a non-confidential basis, and we are not under any obligation to keep any Feedback you send confidentially or to refrain from using, exploiting or disclosing it in any way. You knowingly forfeit any Intellectual Property Rights or benefits regarding any ideas or improvements contained in Feedback. You are not entitled to any compensation or reimbursement of any kind from us under any circumstances for your Feedback.
- Limitation of Liability and Disclaimer of Warranties: THE TERMS OF THIS SECTION 6 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW:
- No Warranties: NEITHER WE NOR ANY OF OUR OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, AFFILIATES, SUCCESSORS, AND ASSIGNS (EACH, AN “MEDIA TEST DRIVE PARTY” AND COLLECTIVELY, “MEDIA TEST DRIVE PARTIES”) MAKE ANY WARRANTIES OR REPRESENTATIONS ABOUT THE SERVICES, INCLUDING THE APPLICATIONS, THE PLATFORM OR ANY OF OUR CONTENT. ACCORDINGLY, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND THE MEDIA TEST DRIVE PARTIES HEREBY DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND FITNESS FOR A PARTICULAR PURPOSE. CONSEQUENTLY, YOU AGREE THAT YOU ASSUME ALL RISKS ARISING FROM YOUR USE OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, THE MEDIA TEST DRIVE PARTIES DO NOT WARRANT THAT THE SERVICES, INCLUDING THE APPLICATIONS, THE PLATFORM OR ANY OF OUR CONTENT, ARE FREE OF ERRORS, COMPUTER VIRUSES, OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SERVICES RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, THEN NO MEDIA TEST DRIVE PARTY WILL BE RESPONSIBLE FOR THOSE COSTS.
- No Consequential or Indirect Damages: IN NO EVENT SHALL ANY MEDIA TEST DRIVE PARTY BE LIABLE TO YOU OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH THE SERVICES, REGARDLESS OF (i) WHETHER SUCH DAMAGES WERE FORESEEABLE, (i) WHETHER OR NOT YOU WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (iii) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
- Limitation of Liability: IN NO EVENT SHALL THE MEDIA TEST DRIVE PARTIES’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE SERVICES, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED $50.00; PROVIDED, HOWEVER, THAT THIS PROVISION WILL NOT APPLY IF A TRIBUNAL WITH APPLICABLE JURISDICTION FINDS IT TO BE UNCONSCIONABLE. Exceptions
- THE LIMITATIONS outlined in THIS SECTION 6 SHALL NOT APPLY TO DAMAGES OR LIABILITIES ARISING FROM OUR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT IN PERFORMING OUR OBLIGATIONS UNDER THESE TERMS.
- Third-Party Disputes: ANY DISPUTE YOU HAVE WITH ANY THIRD PARTY IN CONNECTION WITH YOUR USE OF THE SERVICES IS DIRECTLY BETWEEN YOU AND THE THIRD PARTY. ACCORDINGLY, TO THE FULLEST EXTENT PERMITTED BY LAW, YOU HEREBY IRREVOCABLY RELEASE MEDIA TEST DRIVE FROM ANY AND ALL CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
- If Remedy Fails Essential Purpose; Severability: THE LIMITATION OF LIABILITY PROVISIONS outlined in THIS SECTION 6 SHALL APPLY EVEN IF YOUR REMEDIES UNDER THESE TERMS FAIL OF THEIR ESSENTIAL PURPOSE. EACH AND EVERY PROVISION OF THIS AGREEMENT WHICH PROVIDES FOR A LIMITATION OF LIABILITY OR WARRANTIES, DISCLAIMER OR EXCLUSION OF DAMAGES, WAS BARGAINED-FOR AND IS EXPRESSLY INTENDED TO BE SEVERABLE AND INDEPENDENT FROM ANY OTHER PROVISION, SINCE THOSE PROVISIONS REPRESENT SEPARATE ELEMENTS OF RISK ALLOCATION BETWEEN THE PARTIES, AND WILL BE SEPARATELY ENFORCED. YOU ACKNOWLEDGE AND AGREE THAT WE WOULD NOT MAKE THE SERVICES AVAILABLE TO YOU WITHOUT YOUR AGREEMENT TO THESE TERMS, INCLUDING THE LIMITATIONS OF LIABILITY outlined in THIS SECTION 6, THAT THE SAME REFLECT AN ALLOCATION OF RISK BETWEEN THE PARTIES (INCLUDING THE RISK THAT A CONTRACT REMEDY MAY FAIL OF ITS ESSENTIAL PURPOSE AND CAUSE CONSEQUENTIAL LOSS) AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
- Indemnification: To the fullest extent permitted by law, you agree to defend, indemnify, and hold harmless the Media Test Drive Parties from and against any/all actual or threatened losses, damages, liabilities, deficiencies, demands, claims, actions, third-party discovery demand, government investigation or enforcement action, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, that are incurred by the Media Test Drive Parties, arising out of or related to any claim alleging (a) your breach or non-fulfilment of any provision of these Terms; (b) your access to, use, or misuse of the Services, including the Platform, the Applications and Our Content; or (c) any allegation that you used the Services in violation of applicable law, rule or regulation or otherwise caused us to send or transmit any Communication in violation of any applicable law, rule, regulation or industry best practice (each, a “Claim”). We will cooperate to the extent reasonably required in the defence of any such Claim, at your expense. We retain the right, at your expense, to retain separate counsel for ourselves, or if you have not responded reasonably to the applicable Claim, to assume the exclusive defence and control of any Claim in which you are a named party and that is otherwise subject to indemnification under this Section 7. In such case, you agree to cooperate with any reasonable requests assisting our defence of such matter at your expense.
- Investigations: We reserve the right, without any limitation, too (i) investigate any suspected breaches of security or information technology or other systems or networks related to the Services, (ii) investigate any suspected breaches of these Terms, (iii) investigate any information obtained by us in connection with reviewing law enforcement databases or complying with criminal laws, (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters and (v) prosecute violators of these Terms.
- Export Controls
- Any software related to or made available by the Platform or as part of our Services may be subject to export controls of the United States. No software from the Platform or that is offered as part of our Services may be downloaded, exported, or re-exported: (i) into (or to a national or resident of) any country or other jurisdiction to which the United States has embargoed goods, software, technology or Services (which, as of the effective date of these Terms, includes Cuba, North Korea, Iran, Sudan, and Syria), or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders, or (iii) to anyone on the U.S. Department of Commerce’s Bureau of Industry and Security Entities List as published in the Export Administration Regulations (including entities engaged in weapons of mass destruction proliferation in various countries and persons and entities that are suspected of diverting U.S. origin items to embargoed countries or terrorist end-uses). You are responsible for complying with all trade regulations and laws both foreign and domestic. Except as authorized by law, you agree and warrant not to export or re-export the software to any country, or any person, entity, or end-user, subject to U.S. export controls, including as outlined in subsections (i) – (iii) above.
- Dispute Resolution
- Applicable Law
- These Terms will be governed by and construed following the laws of the State of California, without giving effect to any principles of conflicts of law. Subject to the arbitration provision below, any legal actions related to these Terms and/or the Services, or your use thereof, will be brought and conducted in San Francisco County, California, and each user consents to such jurisdiction and authorizes and accepts service of process sufficient for personal jurisdiction in any action against him as contemplated by this section.
- Arbitration: ANY DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THESE TERMS OR THE BREACH OR TERMINATION HEREOF WILL BE SETTLED BY BINDING ARBITRATION CONDUCTED BY JAMS (“JAMS”) following JAMS COMPREHENSIVE ARBITRATION RULES AND PROCEDURES (THE “RULES”). THE ARBITRATION WILL BE HEARD BY ONE ARBITRATOR TO BE SELECTED following THE RULES, IN SAN FRANCISCO COUNTY, CALIFORNIA. JUDGMENT UPON ANY AWARD RENDERED MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. ALL PARTIES WAIVE THE RIGHT, IF ANY, TO OBTAIN ANY AWARD FOR EXEMPLARY OR PUNITIVE DAMAGES OR ANY OTHER AMOUNT FOR THE PURPOSE OR IMPOSING A PENALTY FROM THE OTHER IN ANY ARBITRATION OR JUDICIAL PROCEEDING OR OTHER ADJUDICATION ARISING OUT OF OR concerning THESE TERMS, OR ANY BREACH HEREOF, INCLUDING ANY CLAIM THAT THESE TERMS, OR ANY PART HEREOF, IS INVALID, ILLEGAL OR OTHERWISE VOIDABLE OR VOID. IN ADDITION TO ALL OTHER RELIEF, THE ARBITRATOR WILL HAVE THE POWER TO AWARD REASONABLE ATTORNEYS’ FEES TO THE PREVAILING PARTY. TO THE EXTENT ALLOWED UNDER APPLICABLE LAW, YOU AGREE ANY DISPUTE WILL BE RESOLVED WITHOUT INCLUDING ANY OTHER THIRD PARTIES INCLUDED AS PARTIES TO THE ARBITRATION PROCEEDING, BE IT AS INDIVIDUALS, AS PART OF A COLLECTIVE ACTION, OR AS PART OF A REPRESENTATIVE CLASS, UNLESS BOTH YOU AND MEDIA TEST DRIVE AGREE TO SUCH CONSOLIDATION AFTER A DISPUTE HAS ARISEN. IF ANY PROVISION OF THESE TERMS WILL BE UNLAWFUL, VOID OR FOR ANY REASON UNENFORCEABLE, THEN THAT PROVISION WILL BE DEEMED SEVERABLE FROM THESE TERMS AND WILL NOT AFFECT THE VALIDITY AND ENFORCEABILITY OF ANY REMAINING PROVISIONS. OUR FAILURE TO ENFORCE ANY PROVISION OF THESE TERMS WILL NOT BE DEEMED A WAIVER OF SUCH PROVISION NOR THE RIGHT TO ENFORCE SUCH PROVISION.
- Class Action Waiver: BOTH YOU AND YOUR AFFILIATES, ON ONE HAND, AND MEDIA TEST DRIVE AND ITS AFFILIATES, ON THE OTHER HAND, AGREE THAT ANY CLAIMS OR CONTROVERSIES BETWEEN US MUST BE BROUGHT AGAINST EACH OTHER ON AN INDIVIDUAL BASIS ONLY. THAT MEANS NEITHER YOU AND YOUR AFFILIATES ON ONE HAND NOR MEDIA TEST DRIVE AND ITS AFFILIATES, ON THE OTHER HAND, CAN BRING A CLAIM AS A PLAINTIFF OR CLASS MEMBER IN A CLASS ACTION, CONSOLIDATED ACTION, OR REPRESENTATIVE ACTION. THE ARBITRATOR CANNOT COMBINE MORE THAN ONE PERSON’S OR ENTITY’S CLAIMS INTO A SINGLE CASE, AND CANNOT PRESIDE OVER ANY CONSOLIDATED, CLASS OR REPRESENTATIVE PROCEEDING (UNLESS WE AGREE OTHERWISE). AND, THE ARBITRATOR’S DECISION OR AWARD IN ONE PERSON’S OR ENTITY’S CASE CAN ONLY IMPACT THE PERSON OR ENTITY THAT BROUGHT THE CLAIM, NOT OTHER MEDIA TEST DRIVE USERS, CUSTOMERS OR PARTNERS, AND CANNOT BE USED TO DECIDE OTHER DISPUTES WITH OTHER USERS, CUSTOMERS OR PARTNERS. THE ARBITRATOR DOES NOT HAVE THE POWER TO VARY THESE CLASS ACTION WAIVER PROVISIONS. HOWEVER, IF FOR ANY REASON ANY COURT WITH COMPETENT JURISDICTION HOLDS THAT THIS RESTRICTION IS UNCONSCIONABLE OR UNENFORCEABLE, THEN OUR AGREEMENT IN SECTION 9.B.ii TO ARBITRATE WILL NOT APPLY AND THE DISPUTE MUST BE BROUGHT EXCLUSIVELY IN COURT according to SECTION 9.B.i.
- Injunctive Relief: The foregoing provisions of this Section 9.B will not apply to any legal action taken by us to seek an injunction or other equitable relief in connection with any loss, cost or damage (or potential loss, cost or damage) related to these Terms and the Services, including the Applications, the Platform, Our Content, your User Data, our Intellectual Property Rights and our business operations.
- Severability: If any term or provision of these Terms is invalid, illegal, or unenforceable by a court or arbitrator of competent jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the court or arbitrator of competent jurisdiction may modify these Terms to affect the original intent of the parties as closely as possible so that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
- Interpretation: To the extent permitted by applicable law, you agree to waive, and hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter. Wherever the word “including” is used in these Terms, the word will be deemed to mean “including, without limitation”.
- Assignment: We may assign our rights and delegate obligations under these Terms, in whole or in part, to any party at any time without notice. You may not assign these Terms, and you may not delegate your duties under them, without our prior written consent
- No Waiver: No waiver under these Terms is effective unless it is in writing, identified as a waiver to this Agreement, and signed by an authorized representative of the party waiving its right. Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated, and does not operate as a waiver on any future occasion. None of the following constitutes a waiver or estoppel of any right, remedy, power, privilege, or condition arising from these Terms: (i) any failure or delay in exercising any right, remedy, power, or privilege or in enforcing any condition under these Terms; or (ii) any act, omission, or course of dealing between the parties.
- Relationship: Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture or other forms of joint enterprise, employment, or fiduciary relationship between the parties. Neither party, under these Terms, will have any right, power, or authority to act or create any obligation, express or implied, on behalf of the other party.
- Notices: Any notice required or permitted to be given under these Terms will be given in writing to the receiving party by personal delivery, certified mail, return receipt requested, overnight delivery by a nationally recognized carrier or by email upon confirmation of receipt. Notices to Media Test Drive shall be copied to [email protected].
- Force Majeure: No failure, delay or default in performance of any obligation of a party shall constitute an event of default or breach of these Terms to the extent that such failure to perform, delay or default arises out of a cause, existing or future, that is beyond the control and without negligence of such party, including action or inaction of governmental, civil or military authority; fire; strike, lockout or other labour dispute; flood, a terrorist act; war; riot; theft; earthquake and another natural disaster. The party affected by such cause shall take all reasonable actions to minimize the consequences of any such cause.
- Entire Agreement: These Terms supersede all prior and contemporaneous understandings, proposals, statements, sales materials or presentations, representations, warranties and agreements, oral and written, concerning the subject matter. No oral or written information or advice is given by Media Test Drive, its agents or employees will create a warranty or in any way increase the scope of the warranties in these Terms.