Terms of Service

1. Order Forms; Access to the Product.

Upon mutual execution, each Order Form shall be incorporated into and form a part of the Agreement. For each Order Form, subject to Customer’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on the applicable Order Form) Mediar grants Customer a nonexclusive, limited, personal, nonsublicensable, nontransferable right and license to internally access and use the Mediar product(s) and/or service(s) specified in such Order Form (collectively, the “Product,” or “Products”) during the applicable Order Form Term (as defined below) for the internal business purposes of Customer, only as provided herein and only in accordance with Mediar’s applicable official user documentation for such Product (the “Documentation”).

2. Implementation.

Upon payment of any applicable fees set forth in each Order Form, Mediar agrees to use reasonable commercial efforts to provide standard implementation assistance for the Product only if and to the extent such assistance is set forth on such Order Form (“Implementation Assistance”). If Mediar provides Implementation Assistance in excess of any agreed-upon hours estimate, or if Mediar otherwise provides additional services beyond those agreed in an Order Form, Customer will pay Mediar at its then-current hourly rates for consultation.

3. Support; Service Levels.

Subject to Customer’s payment of all applicable fees, Mediar will provide support, maintenance, and uptime for each Product in accordance with Mediar’s then-current standard support and availability policies for the Product.

4. Product Updates.

From time to time, Mediar may provide upgrades, patches, enhancements, or fixes for the Products to its customers generally without additional charge (“Updates”), and such Updates will become part of the Products and subject to this Agreement; provided that Mediar shall have no obligation under this Agreement or otherwise to provide any such Updates. Customer understands that Mediar may make improvements and modifications to the Products at any time in its sole discretion; provided that Mediar shall use commercially reasonable efforts to give Customer reasonable prior notice of any major changes.

5. Ownership; Feedback.

As between the parties, Mediar retains all right, title, and interest in and to the Products, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Mediar for the purposes of this Agreement, including any copies and derivative works of the foregoing. Any software which is distributed or otherwise provided to Customer hereunder (including without limitation any software identified on an Order Form) shall be deemed a part of the “Products” and subject to all of the terms and conditions of this Agreement. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. Customer may (but is not obligated to) provide suggestions, comments or other feedback to Mediar with respect to the Product (“Feedback”). Mediar acknowledges and agrees that all Feedback is provided “AS IS” and without warranty of any kind. Notwithstanding anything else, Customer shall, and hereby does, grant to Mediar a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose. Nothing in this Agreement will impair Mediar’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Customer may develop, produce, market, or distribute.

6. Fees; Payment.

Customer shall pay Mediar fees as set forth in each Order Form (“Fees”). Unless otherwise specified herein or in an Order Form, all Fees shall be invoiced annually in advance and all invoices issued under this Agreement are payable in U.S. dollars within thirty (30) days from date of invoice. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. Customer shall be responsible for all taxes associated with the Product (excluding taxes based on Mediar’s net income). All Fees paid are non-refundable and are not subject to set-off. If Customer exceeds any user or usage limitations set forth on an Order Form, then (i) Mediar shall invoice Customer for such additional users or usage at the overage rates set forth on the Order Form (or if no overage rates are set forth on the Order Form, at Mediar’s then-current standard overage rates for such usage), in each case on a pro-rata basis from the first date of such excess usage through the end of the Order Form Initial Term or then-current Order Form Renewal Term (as applicable), and (ii) if such Order Form Term renews (in accordance with the section entitled “Term; Termination”, below), such renewal shall include the additional fees for such excess users and usage.

7. Restrictions.

Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Product (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Product; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Product; (iv) use the Product for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Product or any portion thereof; (vi) use the Product to build an application or product that is competitive with any Mediar product or service; (vii) interfere or attempt to interfere with the proper working of the Product or any activities conducted on the Product; or (viii) bypass any measures Mediar may use to prevent or restrict access to the Product (or other accounts, computer systems or networks connected to the Product). Customer is responsible for all of Customer’s activity in connection with the Product, including but not limited to uploading Customer Data (as defined below) onto the Product. Customer (a) shall use the Product in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Product (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (b) shall not use the Product in a manner that violates any third party intellectual property, contractual or other proprietary rights.

8. Product Deployment; Customer Data.

Unless otherwise set forth on an Order Form, the Product will be provisioned on a hosting environment provided by Customer (the “Customer Environment”). For purposes of this Agreement, “Customer Data” shall mean any data, information or other material provided, uploaded, or submitted by Customer to the Product in the course of using the Product. Customer shall retain all right, title and interest in and to the Customer Data, including all intellectual property rights therein. Customer, not Mediar, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Customer represents and warrants that it has all rights necessary to provide the Customer Data to Mediar as contemplated hereunder, in each case without any infringement, violation or misappropriation of any third party rights (including, without limitation, intellectual property rights and rights of privacy). Mediar shall use commercially reasonable efforts to maintain the security and integrity of the Product and the Customer Data. Notwithstanding anything else, if the Product is deployed in a Customer Environment, Customer acknowledges and agrees that: (a) Customer will provide Mediar with access to the Customer Environment to allow Mediar to install, configure, support and maintain the Product as provided hereunder, and Mediar shall not be responsible for any issues that arise from failure to provide such access; (b) Customer is responsible for ensuring that Mediar’s access to the Customer Environment as permitted hereunder does not conflict with or violate any agreement between Customer and any third party (including, without limitation, any third party hosting provider with respect to the Customer Environment; (c) Mediar does not host the Customer Environment into which the Products are deployed or in which Customer Data may be stored; and (d) Customer is solely responsible for the Customer Environment, including without limitation security, backup, and disaster recovery with respect thereto. Accordingly, and without limiting the foregoing, Mediar is not responsible to Customer for any loss, destruction, or alteration of, or unauthorized access to Customer Data or the unauthorized use of the Product except to the extent due to Mediar’s gross negligence or willful misconduct. Customer is responsible for the use of the Product by any person to whom Customer has given access to the Product, even if Customer did not authorize such use. Customer agrees and acknowledges that Customer Data may be irretrievably deleted if Customer’s account is ninety (90) days or more delinquent. With respect to the Customer Environment, Customer further acknowledges and agrees that Customer is responsible for (i) protecting the security of all Customer credentials used to access the Customer Environment; (ii) securing the Customer Environment (with such steps to include without limitation the regular rotation of access keys and other industry standard steps to preclude unauthorized access); (iii) backing up and securing Customer Data under Customer’s control within the Customer Environment; and (iv) ensuring that Mediar does not have access to Customer Data that is not necessary for Mediar to perform its obligations hereunder, and Customer expressly assumes the risks associated with the foregoing responsibilities. Upon any termination or expiration of an applicable Order Form, Customer will permit Mediar to access the Customer Environment to remove all Mediar property, including but not limited to the Products. Notwithstanding anything to the contrary, Customer acknowledges and agrees that Mediar may (i) internally use and modify (but not disclose) Customer Data for the purposes of (A) providing the Product to Customer and (B) generating AggregatedDe_IdentifiedData (as defined below), and (ii) freely use, retain and make available AggregatedDe_IdentifiedData for Mediar’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Mediar’s products and services). “Aggregated De-Identified Data” means data submitted to, collected by, or generated by Mediar in connection with Customer’s use of the Product, but only in aggregate, de-identified form which can in no way be linked specifically to Customer.

9. Vendor Integrations.

Customer acknowledges and agrees that (i) the Product may integrate with, connect to, or otherwise use platforms, products or services operated or provided by third parties (e.g., other vendors of Customer) (“Vendor Integrations”), including via use of application programming interfaces (APIs) provided by such Vendor Integrations, (ii) the availability and operation of the Product or certain portions thereof may be dependent on Mediar’s ability to access such Vendor Integrations, and (iii) Customer’s failure to provide adequate access or any retraction of permissions relating to such Vendor Integrations may result in a suspension or interruption of the Product. Customer hereby represents and warrants that it has all rights, licenses, permissions and consents necessary to connect, use and access any Vendor Integrations that it integrates with the Product, and Customer shall indemnify, defend and hold harmless the Mediar for all claims, damages and liabilities arising out of Customer’s use of any Vendor Integrations in connection with or through the Product. Customer is solely responsible for procuring any and all rights necessary for it to access Vendor Integrations (including any Customer Data or other information relating thereto) and for complying with any applicable terms or conditions thereof. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions. Mediar cannot and does not guarantee that the Product shall incorporate (or continue to incorporate) any particular Vendor Integrations and does not make any representations or warranties with respect to Vendor Integrations.

10. Third Party Terms.

Customer acknowledges and agrees that: (i) the Product may incorporate certain technology, information, data, and materials from third party providers (collectively, “Third Party Services”); (ii) without limiting any rights that Customer may have under any separate agreement between Customer and any provider of a Third Party Service, Third Party Services may only be used in conjunction with the Product; and (iii) Customer’s use of the Third Party Services hereunder shall be subject to (and Customer agrees it is bound by) the third party terms and conditions referenced at https://ai.google.dev/terms (the “Third Party Terms Site”), as they may be modified from time to time by Mediar and/or its third party licensors or suppliers at any time (collectively, the “Third Party Terms”), and which are incorporated into this Agreement by reference. Customer is responsible for checking the Third Party Terms Site for updates. Any use by Customer of the Products following a change to the Third Party Terms shall constitute acceptance of such change. Mediar cannot and does not guarantee that the Product shall incorporate (or continue to incorporate) any particular Third Party Services, and does not make any representations or warranties with respect to Third Party Services or any third party providers.

11. Term; Termination.

This Agreement shall commence upon the date of the first Order Form, and, unless earlier terminated in accordance herewith, shall last until the expiration of all Order Form Terms. For each Order Form, unless otherwise specified therein, the “Order Form Term” shall begin as of the effective date set forth on such Order Form, and unless earlier terminated as set forth herein, (x) shall continue for the initial term specified on such Order Form (the “Order Form Initial Term”), and (y) following the Order Form Initial Term, shall automatically renew for additional successive periods of equal duration to the Order Form Initial Term (each, a “Order Form Renewal Term”) unless either party notifies the other party of such party’s intention not to renew no later than thirty (30) days prior to the expiration of the Order Form Initial Term or then-current Order Form Renewal Term, as applicable. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice. Without limiting the foregoing, Mediar may suspend or limit Customer’s access to or use of the Product if (i) Customer’s account is more than sixty (60) days past due, or (ii) Customer’s use of the Product results in (or is reasonably likely to result in) damage to or material degradation of the Product which interferes with Mediar’s ability to provide access to the Product to other customers; provided that in the case of subsection (ii): (a) Mediar shall use reasonable good faith efforts to work with Customer to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (b) prior to any such suspension or limitation, Mediar shall use commercially reasonable efforts to provide notice to Customer describing the nature of the damage or degradation; and (c) Mediar shall reinstate Customer’s use of or access to the Product, as applicable, if Customer remediates the issue within thirty (30) days of receipt of such notice. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability. For clarity, any services provided by Mediar to Customer, including any assistance in exporting the Customer Data, shall be billable at Mediar’s standard rates then in effect.

12. Indemnification.

Each party (“Indemnitor”) shall defend, indemnify, and hold harmless the other party, its affiliates and each of their respective employees, contractors, directors, suppliers and representatives (collectively, the “Indemnitee”) from all losses, liabilities, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to any claim by such third party that (i) the Customer Data or Customer’s use of the Product (in the case of Customer as Indemnitor), or (ii) the Product (in the case of Mediar as Indemnitor), infringes, violates, or misappropriates any intellectual property or proprietary right of such third party; provided that the Indemnitee provides the Indemnitor with: (x) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced by such failure); (y) the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (z) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense). The foregoing obligations of Mediar do not apply (A) with respect to the Product or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (1) not created or provided by Mediar (including without limitation any Customer Data), (2) made in whole or in part in accordance to Customer specifications, (3) modified after delivery by Mediar, (4) combined with other products, processes or materials not provided by Mediar (where the alleged Losses arise from or relate to such combination), (B) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (C) to the extent Losses arise from Customer’s breach of this Agreement.

13. Disclaimer.

EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE Product IS PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.

14. Limitation of Liability.

EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS AND FOR CUSTOMER’S BREACH OF THE SECTION ENTITLED “RESTRICTIONS”, IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY CUSTOMER TO MEDIAR HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.

15. Miscellaneous.

This Agreement (including all Order Forms) represents the entire agreement between Customer and Mediar with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and Mediar with respect thereto. In the event of any conflict between these Terms and an Order Form, the Order Form shall control. The Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in San Francisco, California. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the Order Form. Either party may update its address set forth above by giving notice in accordance with this section. Except as otherwise provided herein, any provision of this Agreement may be amended or waived only by a writing executed by both parties. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement, and (ii) Mediar may utilize subcontractors in the performance of its obligations hereunder. Customer agrees that Mediar may use Customer’s name and logo to refer to Customer as a customer of Mediar on its website and in marketing materials. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.

16. Contact.

For questions regarding these Terms, please contact us: