Last Modified February 15, 2018
- Modifications of This Agreement
2.1 “Analytics” means measures of consumer engagement with Your Content obtained and/or compiled by Champaign on your behalf from the Internet, and data derived therefrom, including reports, summaries, graphs, and charts.
2.2 “Authorized Users” means individuals authorized by you to use the Services and who you have supplied user identifications and passwords to. Authorized Users may include your employees, consultants, contractors, agents, or your other designees, but shall not include any employee or agent of any Champaign competitor.
2.3 “Public Interactions” means the text, information, links, posts, videos, and/or other media or content that third parties post, upload, or otherwise provide on the Supported Social Networks in response to and/or interacting with Your Content.
2.4 “Supported Social Network(s)” means the social networking site(s) supported by the Services, including Twitter, Facebook, LinkedIn, and any other social networking site identified as a Supported Social Network on the Site.
2.5 “Term of the Agreement” or “Term” means the period in which this Agreement is in effect (with exception of those provisions identified in section 8.3, below, which survive termination of this Agreement). The Term shall commence on the day you access the Services for the first time and shall continue until your subscription ends, or your account is cancelled and you cease using our Services.
2.6 “Third-Party Services” means products, services, applications, or websites made available by third parties through the Services (i.e., companies or people who are not Champaign, such as Twitter).
2.7 “Your Content” means all information and data (including but not limited to text, images, photos, videos, audio, and documents) or any other content in any media and format submitted, uploaded, or otherwise made available to Champaign by or on your behalf in relation to the use of the Services.
- Champaign Services
3.2 Updates. Champaign may periodically apply updates to the Services and that such updates may result in changes in the appearance and/or functionality of the Services (including the addition, modification, or removal of functionality, features, or content). Updates may be applied at times solely within our discretion, with or without prior notice to you. Excluding the addition of wholly new products, Champaign will provide, implement, configure, install, support, and maintain at its own cost any and all updates, upgrades, enhancements, improvements, releases, corrections, bug fixes, patches, and modifications to the Services.
3.3 Availability of Supported Social Networks. You acknowledge that the Services interoperate with several Supported Social Networks, and that the Services provided are highly dependent on the availability of such Supported Social Networks. If at any time any Supported Social Networks cease to make their programs available to Champaign on reasonable terms (in Champaign’s sole discretion), Champaign may cease to provide such features to you without entitling you to refund, credit, or other compensation.
3.5 Prohibited Uses. You must not (a) make the Services available to anyone other than to your Authorized Users; (b) use the Services to store or transmit any content, including Your Content, that may be infringing, defamatory, threatening, harmful, or otherwise tortious or unlawful, including any content that may violate intellectual property, privacy, rights of publicity, or other laws, or send spam or other unsolicited messages in violation of applicable law; (c) upload to, or transmit from, the Services any data, file, software, or link that contains or redirects to a virus, Trojan horse, worm, or other harmful component; (d) attempt to reverse engineer, de-compile, hack, disable, interfere with, disassemble, copy, or disrupt the integrity or the performance of the Services, any third-party use of the Services, or any third-party data contained therein (except to the extent such restrictions are prohibited by applicable law); (e) access the Services in order to build a competitive product or service or copy any ideas, features, functions, or graphics of the Services; (f) attempt to gain unauthorized access to the Services or its related systems or networks; (g) engage in any abuse or misuse of the services that harm Champaign, The Matic, Inc., the public, and/or other users of Champaign; or (h) authorize, permit, or encourage any third party to do any of the above.
3.6 Right to Suspend or Terminate Access. Champaign may suspend your access to the Services for abusive practices that violate Section 3.5, above, that infringe on the intellectual property rights of Champaign and/or of third parties, and/or that degrade the performance of the Services for you and/or other users of Champaign Services. Likewise, Champaign reserves the right to suspend or terminate your access to the Services if (1) a Supported Social Network blocks your access to that platform; (2) we reasonably believe that you are in violation of the terms of service of a Supported Social Network; or (3) we reasonably believe you have conducted yourself in a way that threatens our relationship with any Supported Social Network.
3.7 No Liability for Public Interactions. You understand that by using the Services you may be exposed to Public Interactions that might be unlawful, offensive, harmful, defamatory, inaccurate or otherwise inappropriate. Champaign does not own, control, or review Public Interactions, except to the extent that some information concerning and/or content of Public Interactions may be incorporated into Analytics. Champaign has no obligation to preview, verify, flag, modify, filter, or remove any Public Interactions, but may do so in its sole discretion. Your use and/or engagement with Public Interactions is at your sole risk, and Champaign shall not be liable to you or any third party in relation to Public Interactions.
3.8 Third-Party Products and Services. You acknowledge that the Services may enable or assist you to access, interact with, and/or purchase Third-Party Services from Supported Social Networks and other third parties. When you access the Third-Party Services, you will do so at your own risk. These Third-Party Services may also allow you to store your Customer Content with the provider or operator of the Third-Party Services. Any use of Third-Party Services is governed solely by the terms and conditions of such Third-Party Services (and you shall comply with all such terms and conditions), and any contract entered into, or any transaction completed via any Third-Party Services, is between you and the relevant third party, and not Champaign. Champaign makes no representation and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such Third-Party Services or any transactions completed and any contract entered into by you with any such third party.
- Beta Use/Beta Testing
4.1 Beta Services. From time to time, we may offer you the opportunity to install, use, and/or and test certain of our Services prior to their commercial release (the “Beta Services”). Beta Services are intended for evaluation purposes and not for production use and are subject to following additional terms:
(i) we grant you a limited right to use the Beta Services for Beta Testing purposes during the applicable testing period;
(ii) in exchange for free, reduced cost, and/or early access to the Beta Services, you agree to provide suggestions, comments, or other feedback with respect to the Beta Services as reasonably requested, including ideas for modifications and enhancements, (the “Beta Feedback”);
(iii) Champaign may discontinue your access to Beta Services if, in Champaign’s sole discretion, you fail to provide the requisite volume, quality, and/or frequency of Beta Feedback, as provided for in any applicable Beta Services Guidelines.
4.2 Beta Services Guidelines. By participating in any Beta Services, you agree to use and explore the Beta Services to the fullest intended extent. You agree to provide feedback including: your perceived value of the Beta Services, how much you are willing to pay for the Beta Services, your thoughts on missing critical features, and what would prevent you from continuing to use our Services or Beta Services. You also agree to respond to periodic check-ins that may include brief surveys or request for general status updates.
4.3 Ownership of Beta Feedback. By participating in any Beta Services, you agree that any Beta Feedback you provide is the property of Champaign. You further agree that Champaign may use and exploit all or part of your feedback in any manner or medium (including but not limited to using Beta Feedback in Champaign’s marketing materials) without any further consideration or compensation to you. You represent and warrant that you have the right to enter into this Agreement and assign the rights set forth herein. You further represent and warrant that any Beta Feedback provided by you is an original work authored solely by you and does not infringe any intellectual property rights of any third party.
4.4 Beta Services on “As Is” Basis. You agree that your participation in the Beta Services program is at your own risk and that the Beta Services are offered on an “as is” basis, without warranties of any kind, express or implied. Champaign expressly disclaims, on its own behalf and on behalf of its employees, agents, contractors, and consultants, any and all warranties, to the maximum extent permissible by law, including but not limited to any implied warranties of merchantability and/or fitness for any particular purpose.
4.5 Discounted or Gratis Access to Services. Champaign may, in its sole discretion, offer users and or testers of Beta Services discounted or free access to any or all Champaign Services. To the extent Champaign wishes to offer discounted or free access, any such offer shall be binding only if set forth in writing by Champaign.
- Intellectual Property
6.1 Champaign’s Intellectual Property. All software, information, data (including but not limited to your self-classified industry, campaign patterns you build within the Champaign application, and the attributes and parameters of the campaigns you build), logos, marks, designs, graphics, and other materials related to the Services — other than Your Content — is the property of Champaign and is protected by copyright, trademark, and other intellectual property laws. All rights, title, and interest in and to the Services and any and all software, information, data, logos, marks, designs, graphics, and other materials related to the Services — other than Your Content — not expressly granted to you in this Agreement are reserved by Champaign. Except as expressly authorized by Champaign in writing, you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publish, or create derivative works from any intellectual property owned by Champaign; however, you may print or download a reasonable number of copies of materials or contents of the Site for your own informational purposes.
6.2 Intellectual Property Rights in Your Content. You retain ownership of all intellectual property rights over Your Content posted to any Supported Social Network(s) using Champaign. You represent and warrant that you have the right to use, post, display, and distribute all of Your Content and that by posting such content you are not infringing the intellectual property rights of any third party. Your Content is your responsibility. We have no responsibility or liability for it, or for any loss or damage Your Content may cause to you or to any third party. You grant Champaign a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to access, use, reproduce, electronically distribute, transmit, format, display, store, archive, and index Your Content for the purpose of supporting your use of the Services and providing Services to you. We may also use Your Content for the purpose of supporting and developing the Services.
6.3 License to Use Your Feedback. If at any time you provide suggestions, comments or other feedback to Champaign with respect to the Services, you grant to Champaign a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and exploit such feedback for any purpose.
- Termination and Cancellation
8.1 Termination/Cancellation. If you violate the letter or spirit of this Agreement, abuse the Services, use the Services in any way likely to cause harm to Champaign, other users, or the public, or otherwise create risk or possible legal exposure to Champaign, we can terminate or suspend your access to the Services at our sole discretion. We will use commercially reasonable efforts to notify you by email or at the next time you attempt to access your account. You may also cancel or disable Services at any time. For cancellation procedure, and for further assistance, please email us at email@example.com
8.2 Effects of Termination/Cancellation. Upon termination or cancellation of this Agreement for any reason, (i) you will immediately cease all use of the Services; (ii) you will have no further access to the Services or to your accounts provided by Champaign; and (iii) you will pay Champaign all unpaid amounts owed to us.
8.3 Survival. Any provision of this Agreement which, either by its terms or to give effect to its meaning, must survive, and such other provisions which expressly, or by their nature, are intended to survive termination, cancellation, or expiration of this Agreement shall survive. The provisions expressly intended to survive the termination or cancellation of this Agreement include those provisions concerning confidential information, intellectual property, disclaimer of warranty, indemnification, limitation of liability, dispute resolution, and all “miscellaneous” provisions (section 11, below).
- Warranty Disclaimer; Limitation of Liability; Indemnification
9.1 Disclaimer of Warranties. To the greatest extent permitted by law, Champaign excludes and disclaims all warranties of any kind, whether express, implied, statutory, or otherwise. Without limiting the generality of the foregoing, Champaign specifically disclaims all express or implied warranties of design, merchantability, fitness for a particular purpose, title, quality, and noninfringement. Champaign further disclaims any warranty, express or implied, that its services will always be available, accessible, uninterrupted, timely, secure, accurate, complete, or error-free. For example, and without limitation, Champaign cannot and does not warrant that updates or technical issues will not cause the Services to be temporarily unavailable, that a Supported Social Network will not change its API in a way that affects Champaign’s functionality, that a Supported Social Network will not reject Your Content based on the Supported Social Network’s terms of service, or that Your Content will not become unavailable. The Services are provided on an “as is” and “as available” basis. You are solely responsible for maintaining copies of any of Your Content you post or store using the Services.
9.2 Limitation of Liability. Champaign is not responsible or liable for any damages or harm caused by Your Content, any Public Interaction, or any content or services provided by third parties. We do not control, vet, or preview Your Content or Public Interactions and are not responsible for what you or others post, transmit, or share. Champaign is not liable for any injury or harm caused by the loss or destruction of any of Your Content. Champaign is not responsible or liable in any manner for any Third-Party Services or Supported Social Networks associated with or utilized in connection with the Services, including the failure of any such Third-Party Services or Supported Social Networks. Champaign is not liable for any damages or harm resulting from hacking, tampering, or other unauthorized access to or use of the Services, your account, or the information contained in your account.
In no event shall the aggregate liability of Champaign (together with its affiliates, officers, directors, employees, agents, contractors, and licensors) for all claims of any kind arising out of or related to this agreement exceed the greater of (1) the total amount of fees paid by you for the three-month period immediately preceding the date on which the cause of action arose, and (2) FIVE HUNDRED DOLLARS ($500). Nothing in this section shall be construed as excluding or restricting the liability of Champaign, its affiliates, officers, directors, employees, agents, contractors, and/or licensors for willful misconduct or for any liability that cannot be limited or excluded by applicable law.
9.3 Your Indemnification of Champaign. You represent and warrant that you will not use Champaign to post content that infringes on the copyright, trademark, trade secret, publicity rights, trademarks, or other intellectual property interest of any other person or entity, or to post content that is in violation of any laws or regulations of any applicable jurisdiction(s). You agree to defend, indemnify, and hold harmless Champaign, its affiliates, directors, officers, employees, and agents from and against all claims, losses, damages, penalties, liability, and costs, including reasonable attorneys’ fees, of any kind or nature which are in connection with or arising out of a claim alleging the breach of these representations and warranties, and of any other representation or warranty made in this Agreement. You further agree to defend, indemnify, and hold harmless Champaign, its affiliates, directors, officers, employees, and agents from and against any and all claims relating to or arising from Your Content and/or your use of Third-Party Services in connection with the Champaign Services.
- Dispute Resolution
You and Champaign expressly agree that any dispute, claim, or controversy arising out of or relating in any way to this Agreement or to the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by binding arbitration in San Francisco, California. The arbitration shall be conducted by, and according to the rules of, either the American Arbitration Association or JAMS, at the election of the party initiating arbitration proceedings. The arbitrator shall award costs and attorneys’ fees to the prevailing party. BY AGREEING TO THIS PROVISION, YOU UNDERSTAND THAT YOU ARE GIVING UP THE RIGHT TO PURSUE ANY CLAIMS AGAINST CHAMPAIGN IN COURT AND ARE GIVING UP THE RIGHT TO A JURY TRIAL.
11.1 Assignment. You may not assign or otherwise transfer any of your rights or obligations hereunder, whether by merger, sale of assets, change of control, operation of law or otherwise, without the prior written consent of Champaign (not to be unreasonably withheld). Any attempted assignment or transfer without such consent will be void. Champaign may freely assign or delegate all rights and obligations under this Agreement, fully or partially, without notice to you.
11.2 Severability. Each provision of this Agreement is severable. If any provision of this Agreement is or becomes illegal, invalid, or unenforceable in any jurisdiction, the illegality, invalidity, or unenforceability of that provision will not affect the legality, validity, or enforceability of the remaining provisions of this Agreement or of that provision in any other jurisdiction.
11.3 Notices. For purposes of service messages and notices about the Services, we may place a banner notice across our pages to alert you to certain changes such as modifications to this Agreement. Alternatively, notice may consist of an email from us to an email address associated with your account, even if we have other contact information. You also agree that we may communicate with you through your Champaign account or through other means including email, mobile number, telephone, or delivery services including the postal service about your Champaign account or services associated with us. You acknowledge and agree that we shall have no liability associated with or arising from your failure to maintain accurate contact or other information, including, but not limited to, your failure to receive critical information about the Services. You may provide legal notice to Champaign via email to firstname.lastname@example.org, with a duplicate copy sent via first class mail to The Matic, Inc., Attn: Legal Services, 1873 8th Ave., Suite A, San Francisco, CA 94122.
11.4 Waivers. No waiver of any provision of this Agreement is binding unless it is in writing and signed by all parties to this Agreement. No failure to exercise, and no delay in exercising, any right or remedy under this Agreement will be deemed to be a waiver of that right or remedy. No waiver of any breach of any provision of this Agreement will be deemed to be a waiver of any subsequent breach of that provision or of any similar provision.
11.5 Nature of Relationship. 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.
11.6 Governing Law. This Agreement and your relationship with Champaign shall be governed exclusively by the laws of the State of California, without regard to its conflict of law provisions. All disputes under this Agreement will be resolved by the courts of California in San Francisco. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees.