Terms Of Use

MSIGHTS Marketing Management Platform

These Terms of Use establish terms and conditions governing your access to and use of the MSIGHTS Platform Services, including all MSIGHTS Applications (collectively, the “Platform Services”), offered by MSIGHTS INCORPORATED (“MSIGHTS”). To use the Platform Services, you MUST acknowledge and accept the terms of these Terms of Use by clicking the “I Agree” button below. If you do not accept the Terms of Use, DO NOT CLICK THE “I Agree” BUTTON.

Your use of the Platform Services or the information you obtain in using the Platform Services may also be addressed by another agreement between you or your employer and MSIGHTS or an MSIGHTS customer (an “Additional Agreement”). If and to the extent these Terms of Use and the Additional Agreement relating to or affecting the Platform Services are in conflict, the more restrictive provisions will control.

TERMS OF USE
ARTICLE I: DEFINITIONS

The following definitions will apply to these Terms of Use:

(1) Access and variants thereof (including, without limitation, “accessing”) mean to log into and use the Platform Services for their intended purposes.

(2) Client means the individual or entity that has entered into a contract with MSIGHTS relating to use of the Platform Services, and that has assigned you or your employer a Password, or at whose instance MSIGHTS has assigned, you or your employer a Password.

(3) Internet means that certain global network of computers commonly referred to as the Internet, including (without limitation) the World Wide Web.

(4) Link: means text, icons, graphic symbols that upon selection or activation, link or associate to, execute, access or retrieve an off-screen website or Technology.

(5) Password means that certain password, user name and other log-in information assigned to you by a Client or MSIGHTS, in each case for accessing the Platform Services.

(6) Technology means information, data, ideas, works of authorship, computer software, source code, object code, executable code, software libraries, documentation, databases, database designs, data dictionaries, data models, fields, records, scripts, texts, interfaces, interface designs, screen displays, web sites, web pages, Links, visual works, graphic images, audio, video, compilations, formulas, methodologies, techniques, processes, procedures, adaptations, derivative works, computers, hardware, peripherals, components, networks, product lists, supplier lists and customer lists.

ARTICLE II: SCOPE OF USE
Section 2.01 — Access and Use: You may access and use the Platform Services, if at all, by virtue of the relationship between the Client and you or your employer. You may access the Platform Services during the period you are authorized to do so by the Client, only for so long as the Password assigned to you remains valid, and solely for the internal business purposes of the Client.

Section 2.02 — Limitations:
(a) You may not, and may not authorize or enable any third party (i) change, modify or otherwise alter the Platform Services or the software MSIGHTS employs to provide the Platform Services (the “Software”), (ii) use the Platform Services or Software for the benefit of any party other than Client or for any purpose other than as expressly authorized by an Additional Agreement, (iii) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit the Platform Services or Software or make the Platform Services or Software available to any third party, (iv) access or use the Platform Services for monitoring is availability, performance or functionality, or for any other benchmarking or competitive purposes; (v) create or publish Internet “links” to the Platform Services or “frame” or “mirror” any Platform Service on any other server or wireless or Internet-based device; (vi) use or interact with the Platform Services or Software using scripts, bots, or other automated methods not supplied and documented by MSIGHTS, (vii) use the Platform Services in a manner that places an excessive burden on MSIGHTS’ infrastructure or otherwise interferes with MSIGHTS’ ability to provide services to Client or other customers, (viii) use the Platform Services or Software to access, store, distribute or transmit any material that (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (b) facilitates illegal activity; (c) depicts sexually explicit or suggestive images (d) promotes unlawful activity or violence; or (e) is defamatory or discriminatory, including without limitation based on race, gender, color, religious belief, sexual orientation, or disability, or (ix) reverse engineer or access the Platform Services or any Software in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service.

(b) You acknowledge that (i) MSIGHTS’ platform, modules, and services run on the Force.com platform operated by salesforce.com, and (ii) your use of salesforce.com is governed by the Master Subscription Agreement at http://www.salesforce.com/company/msa.jsp.

Section 2.03 — Cancellation: MSIGHTS may cancel your Password, for convenience and in the exclusive discretion of MSIGHTS without notice. Upon cancellation of the Password, you will immediately cease and desist any and all access to and attempts to access the Platform Services.

Section 2.04 — Privacy Policy: You acknowledge that MSIGHTS collects certain information regarding parties that access or use the Platform Services, and that MSIGHTS may use that information as described by the MSIGHTS Privacy Policy at http://msights.com/privacy. You acknowledge that you have read the MSIGHTS Privacy Policy and accept the terms on that Policy. In addition, you acknowledge that salesforce.com may collect and use certain information as described in the Third Party Agreements.

ARTICLE III: INTELLECTUAL PROPERTY
Section 3.01 — Ownership and Title: MSIGHTS, as between you and MSIGHTS, is and will remain the sole owner of the Platform Services, and the Technology contained or embodied in the Platform Services, and all patents, copyrights, trademarks, trade secrets and other intellectual property rights related thereto or embodied therein.

Section 3.02 — Proprietary Information: You will hold MSIGHTS Technology in strict confidence and will not access or disclose MSIGHTS Technology except as otherwise permitted under these Terms of Use. You acknowledge that the MSIGHTS Platform Services and the Technology embodied therein derives independent economic value (actual or potential) from not being generally known to other persons who can obtain economic value from its disclosure or use and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; is the subject of reasonable efforts under the circumstances to maintain its secrecy; and is an MSIGHTS trade secret.

Section 3.03 — Comments: MSIGHTS welcomes your comments concerning the Platform Services, including notice you have experienced a failure, error or other malfunction, and suggestions for additional or different features and functions. MSIGHTS accepts no obligation to respond or act on any such comments or suggestions, but you grant MSIGHTS a perpetual, irrevocable, transferrable, sublicensable, fully paid-up, royalty-free, worldwide right and license under your intellectual property rights (if any) to copy, modify, display, perform, retain, distribute and implement your comments and suggestions in Platform Services and other products or services.

ARTICLE IV: WARRANTY AND INDEMNIFICATION
Section 4.01 — WARRANTY DISCLAIMER: MSIGHTS EXTENDS DIRECTLY AND SOLELY TO CLIENTS SUCH WARRANTIES REGARDING THE PLATFORM AND RELATED SERVICES AS MSIGHTS DETERMINES IN ITS SOLE DISCRETION, AND MAKES NO REPRESENTATIONS OR WARRANTIES TO YOU REGARDING THE PLATFORM OR THE SERVICES PROVIDED UNDER THESE TERMS OF USE. ACCESS TO THE PLATFORM IS PROVIDED TO YOU AS IS WITHOUT WARRANTY OF ANY KIND. MSIGHTS, TO THE FULLEST EXTENT PERMITTED BY LAW, HEREBY DISCLAIMS AND YOU HEREBY WAIVE ALL WARRANTIES BY MSIGHTS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS IN CONNECTION WITH THE PLATFORM AND PRODUCTS AND SERVICES OFFERED THROUGH THE PLATFORM. MSIGHTS DOES NOT WARRANT AND YOU HEREBY WAIVE ANY WARRANTY THAT YOUR USE OF OR ACCESS TO THE PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE. MSIGHTS DOES NOT MAKE ANY WARRANTY AND YOU HEREBY WAIVE ANY AND ALL WARRANTIES AS TO THE RESULTS OBTAINED FROM USE OF THE PLATFORM OR AS TO THE ACCURACY, COMPLETENESS, TIMELINESS OR RELIABILITY OF THE PLATFORM. YOU HEREBY ACKNOWLEDGE AND AGREE THAT USE OF THE INTERNET AND PLATFORM SHALL BE AT YOUR SOLE AND EXCLUSIVE RISK AND SUBJECT TO THE RESTRICTIONS, TERMS AND CONDITIONS, RULES, REGULATIONS, POLICIES, APPLICABLE LAWS AND CODES OF CONDUCT GOVERNING THE INTERNET AND THE PLATFORM.

SECTION 4.02 — Inaccuracies: You acknowledge that the Platform Services may contain errors, inaccuracies and omissions. You assume any and all risk of loss, harm or damage associated with your access to and use of the Platform Services.

Section 4.03 — LIMITATION OF LIABILITY: MSIGHTS SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, IN CONNECTION WITH (I) USE, PERFORMANCE OR OPERATION OF THE PLATFORM; (II) USE, PERFORMANCE OR OPERATION OF THE INTERNET OR USE OF THE INTERNET; (III) LOSS OF DATA; AND (IV) PRODUCTS AND SERVICES OFFERED THROUGH THE PLATFORM), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, AND REGARDLESS OF WHETHER MSIGHTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE OR WHETHER SUCH DAMAGES ARE REASONABLY FORESEEABLE.

SECTION 4.04 — Indemnification: You will release, defend, indemnify and hold harmless MSIGHTS (including its officers, directors, employees, affiliates, contractors and agents) from and against any expense, loss, cost or liability (including, without limitation, attorney fees and paralegal fees) arising from any and all claims, demands, damages or actions resulting from or related to (i) your use of the Internet, Platform Services or products or services offered through the Platform Services (including, without limitation, any claims for breach of warranty, loss of data, libel, slander, invasion of privacy or false advertising); (ii) your negligence or any tortious acts (or failures to act); (iii) products or services offered through the Platform Services; and (iv) your breach of your obligations under these Terms of Use.

SECTION 4.05 — Export Assurance: You will perform no act in conflict with or in violation of the export laws and regulations of the United States of America, including (without limitation) the Export Administration Act, 50 U.S.C. §2401, et seq., the Export Administration Regulations, 15 C.F.R. Parts 730-774, the Arms Export Control Act, 22 U.S.C. §2751, and the International Traffic in Arms Regulations, 22 C.F.R. Parts 120-130, as amended.

Section 4.06 — Links: You acknowledge that the Platform Services may contain Links to third party web sites. Any such Links are provided solely as a convenience to you and do not constitute an endorsement by MSIGHTS of such web sites and the third party content therein.

ARTICLE V: MISCELLANEOUS
5.01 No Third Party Beneficiaries. Nothing in these Terms of Use is intended to create any rights in, or confer any benefits upon, any person or entity other than the parties to these Terms of Use.

5.02 Assignment. You may not assign its rights under this Agreement without the other party’s prior written consent.

5.03 Force Majeure. Neither party will be responsible for delays or failure in performance resulting from acts beyond the control of such party, including without limitation, acts of God, strikes, lockouts, riots, acts of war, epidemics, fire, communication line failures, power surges or failures, earthquakes, or other disasters.

5.04 Governing Law. These Terms of Use will be governed by and interpreted under the laws of the State of North Carolina without reference to conflicts of laws principles. The United Nations Convention on Contracts for the International Sale of Goods (UNCCISG) does not apply to these Terms of Use. All disputes related to these Terms of Use will be submitted to the courts in the State of North Carolina, and each party consents to the jurisdiction of such courts and waives any objection it may have regarding venue.

5.05 Amendments. Excepting modifications made to the Privacy Policy by MSIGHTS and modifications made to these Terms of Use by MSIGHTS, any alteration, modification or amendment of these Terms of Use will be void unless such alteration, modification or amendment is in writing and signed by an authorized representative of MSIGHTS.

5.06 Waiver. No waiver of any breach of any provision of these Terms of Use by either party or the failure of either party to insist on the exact performance of any provision of these Terms of Use will constitute a waiver of any prior, concurrent or subsequent breach of performance of the same or any other provisions, and no waiver will be effective unless made in writing.

5.07 Severability. If any of provision of these Terms of Use is or becomes invalid or unenforceable, such invalidity or unenforceability will not invalidate or render unenforceable the remaining provisions of these Terms of Use. Instead, these entire Terms of Use will be construed as though not containing the particular invalid or unenforceable provision or provisions, and the rights and obligations of the parties will be construed and enforced accordingly.

5.08 Interpretation. These Terms of Use are being entered into among competent and experienced business persons and the terms and provisions of these Terms of Use will be construed fairly as to the parties hereto and not in favor of or against either party, regardless of which party was generally responsible for preparing these Terms of Use. You acknowledge that the limited warranties, disclaimers and limitations of liability in these Terms of Use set forth and allocation of risk reflected in the fees and payments due. The section headings used are for reference and convenience only, and will not enter into the interpretation.