AUTHORIZED USER TERMS OF SERVICE
WELCOME TO OPERAM’S CONSOLE PLATFORM. PLEASE READ THE FOLLOWING TERMS AND CONDITIONS (THE “TERMS”) CAREFULLY BEFORE ACCESSING AND USING THE CONSOLE PLATFORM, AS THEY GOVERN YOUR USE OF THE CONSOLE PLATFORM AND SERVICES (AS DEFINED BELOW). THE CONSOLE PLATFORM IS ONLY AVAILABLE AS OFFERED BY OPERAM (“OPERAM”,“WE”, OR“US”).
The Console Platform and Services are available for each Company and their Authorized Users (as such terms are defined below) only on the condition that such Authorized Users (also hereinafter “you”) agree to these Terms. By clicking “Accept”, or by accessing or using the Console Platform and/or Services, you have indicated that you are at least 18 years of age or older, and you understand and accept these Terms on behalf of yourself and Company.
1. Description of Console and Services
Operam provides a cloud-based platform (hereinafter the “Console Platform”) that allows its customers (each a “Company”) and their respective Authorized Users the ability to access certain Services as made available by Operam within the Console Platform in accordance with these Terms, a Services Agreement and/or Order Form that is executed by and between Operam and Company. Such Services may include by way of example: (i) providing access to Company and Authorized Users certain digital advertising and marketing management, performance, optimization, and survey-based analytics, monitoring, dashboards, and Reports; (ii) allowing Authorized Users to interact with other Authorized Users and use certain features of the Services; and (iii) to use or test whether in beta form or otherwise, certain Services and Operam Content (as such terms are defined below) that may be included as set forth in the applicable Order Form or otherwise enabled by Operam in its sole discretion.
- (i) “Authorized User” means an individual person, employee or third-party consultant, agency, or subcontractor authorized to access and use the Services on behalf of, or pursuant to their work for the Company in accordance with these Terms.
- (ii) “Authorized User Content” means the content that is input or submitted into, or posted on to, the Services, by an Authorized User (including you). Authorized User Content does not include Operam Content.
- (iii) “Intellectual Property” or “Intellectual Property Rights” means all inventions and/or works (including with respect to Operam, the Console Platform, Services, and Software,) and any and all rights under U.S. and/or foreign patents, trademarks, trade names, service marks, trade secrets, know-how, mask works, copyrights, and other industrial or intangible property rights of a similar nature; all rights pursuant to grants and/or registrations worldwide in connection with the foregoing and all other rights with respect thereto; all rights under applications for any such grant or registration, all rights of priority under international conventions to make such applications and the right to control their prosecution, and all rights under amendments, continuations, divisions, and continuations-in-part of such applications; and all rights under corrections, reissues, patents of addition, extensions, and renewals of any such grant, registration, and/or right.
- (iv) “Operam Content” means all data and content, such as data files, written text, Reports, images, or other material that may be made available to you by us in connection with the Services.
- (v) “Order Form” means the written purchase order(s) entered into by Company that sets forth the particular Services to be provided by Operam, and identifies the categories or individual Authorized Users that may access the Services.
- (vi) “Profile Data” means any and all information related to an Authorized User including any personally identifiable information contained within any communication between a Company, Authorized User, and the Services.
- (vii) “Reports” means any media spending, data analytics or other reports and graphs generated by the Services and made available on the Console Platform;
- (viii) “Services” means the products, services, data, and Reports accessible through the Console Platform and purchased by Company or otherwise provided by Operam as set forth in the Services Agreement and/or Order Form.
- (ix) “Services Agreement” means the services or beta agreement entered into between Company and Operam, as the same may be amended from time to time.
- (x) “Software” means (i) any Operam proprietary software products, audience management tools, SDKs, code, files, voice or video chat or other tools, features, or other technology made available to you through the Services in accordance with your Services Agreement, Order Form and these Terms, together with any fixes, updates, and upgrades as made available by Operam in its discretion.
- (xi) “Term” has the meaning ascribed to the term in Section 11.1.
3. Access to Services
- 3.1 Customers and Authorized Users. The Services are made available only to (i) Company provided that Company has executed a Services Agreement and/or an Order Form with Operam and (ii) any Authorized Users designated by Company in such Order Form or otherwise approved in writing by Operam to access the Services. You represent and warrant that you are authorized on behalf of the Company to access and use the Services and are authorized to bind Company to these Terms.
- 3.2 Authorized User Access Information. To access the Services, you will be required to create an account with Operam or the Company will create an account for you (in either case, User Account). You will receive secure authentication credentials via email from us or from the Company, or the Company may opt in for a single sign-on feature, enabling you to access the Services by signing on through your work credentials (either form of authentication, “Login Credentials”). You agree to keep your Login Credentials confidential, and to notify us or the appropriate Operam representative at your Company promptly, if you become aware of your login ID or password being disclosed to any third party or otherwise compromised. YOU AND COMPANY, AND NOT OPERAM, SHALL BE RESPONSIBLE FOR ANY USE OR MISUSE OF YOUR LOGIN CREDENTIALS.
4. Acceptable Use Policy
You and Company will be solely responsible for the accuracy, propriety, quality, integrity and legality of all your Authorized User Content. By accessing or using the Services (which shall include the Software), you agree to:
- be subject to any conditions, restrictions or constraints imposed on you or your User Account by the Company or Operam, use commercially reasonable efforts to prevent unauthorized access to or use of the Services and notify Operam of any such unauthorized access or use promptly upon becoming aware of such access or use;
- not use the Services to engage in illegal, fraudulent or other wrongful conduct, including, but not limited to: (a) distributing libelous, defamatory, obscene or unlawful Authorized User Content that promotes bigotry, racism, misogyny or religious or ethnic hatred, (b) transmitting any information or data that infringes any Intellectual Property Rights, or rights of privacy or publicity of any third party or that is otherwise unlawful, or tortious, (c) stalking, harassment, or threatening others with violence or abuse, or (d) violation of any applicable law;
- not use the Services to send abusive commercial solicitation, such as “junk” messages, spam and pyramid schemes to other users of the Services without their consent.
- not make the Services available to anyone other than you;
- not transfer, distribute, sell, resell, lease, sublease, license, or sub-license access to the Services;
- not create, modify, distribute, transmit, display, or perform derivative works based on the Services;
- not copy, frame or mirror any part of the Operam Content or the Services;
- not disassemble, decompile or otherwise reverse engineer the Services;
- not use the Services to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs;
- not intentionally interfere with or disrupt the integrity or performance of the Services or third party data or services contained therein;
- not attempt to gain unauthorized access to the Services or their related systems or networks;
- not access the Services for the purposes of monitoring their availability, performance or functionality, or for any benchmarking against third-party services or competitive purposes;
- not make the functionality of the Services available to multiple users through any means, including, without limitation, through any hosting, application services provider, Services bureau, outsourced or value-added basis or any other type of services; and
- not enable others to do any of the foregoing or otherwise violate any of these Terms. Company will remain liable for any violation of these Terms by you or any of its Authorized Users.
5. Proprietary Rights
- 5.1 Services and Operam Content. Operam exclusively owns all right, title and interest in and to: (i) the Services and Software, and any enhancements, improvements, or adaptations to the foregoing made by Operam, including, all Intellectual Property Rights therein, and Operam reserves all right, title, and interest in and to the Services and Software, and no rights are granted to Company or to you other than as expressly set forth herein; and (ii) all Operam Content including without limitation, the Reports, unless otherwise provided in the Services Agreement and/or Order Form.
- 5.2 Grant of License by Operam. Subject to your compliance with these Terms, and only to the extent authorized by Company, Operam grants to you (i) a limited, revocable, non-exclusive, non-transferable, and non-sublicensable license to access and use the Console Platform and specific Services during the Term, in accordance with the Services Agreement, the Order Form, and these Terms; and to the extent set forth in the Services Agreement or Order Form, (ii) Operam grants to you a limited, revocable, non-exclusive, non-transferable license, with no right to sublicense, to download, view, print, copy, display, modify, transmit (only to Company and other Authorized Users (if permitted)), and to use (to the extent necessary for the benefit of the Company as permitted by these Terms) the Operam Content during the Term, solely in connection with your permitted use of the Services.
- 5.3 Feedback. As consideration for your use and access to the Services, you and Company hereby assign all right, title, and interest in and to any feedback you or your interactions with any other Authorized Users generate to Operam. Without limiting the foregoing, if for any reason you cannot assign such rights, you and Company grant to Operam an unrestricted royalty-free, worldwide, transferable, irrevocable, perpetual license, with a right to sublicense through multiple tiers, to use, copy, modify, create derivate works based upon, and otherwise incorporate into the Services, or Operam’s other products or services including, as part of the Console Platform, any Feedback that you provide, relating to the operation, features, or otherwise related to the foregoing.
- 5.4 Authorized User Content. As between Company and Operam, Company owns all right, title and interest in and to the Authorized User Content. By uploading or submitting any Authorized User Content, you and Company represent and warrant to Operam that: (i) you own all Authorized User Content, or you have all rights that are necessary to grant us the license rights in your Authorized User Content under these Terms, and (ii) neither your Authorized User Content, nor your use and provision of your Authorized User Content to be made available through the Services, nor any use of your Authorized User Content by Operam on or through the Services will infringe, misappropriate or violate a third party’s Intellectual Property Rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
- 5.5 Grant of License in Authorized User Content and Usage Data. You and Company hereby grant to Operam a perpetual, royalty-free, worldwide, transferable and sub-licensable right and license to use the Authorized User Content in connection with Operam or its affiliates or successors or assigns’ business purposes including without limitation, to store, copy, process, save, modify, adapt, re-arrange, compile, create derivative works based upon, distribute, transmit, publicly display, and publicly perform such Authorized User Content for purposes of providing and improving the Services (including future product and services) to Company and other customers.
- 5.6 Operam also has the perpetual and irrevocable right to collect and use as it deems fit, any and all information related to how Company and Authorized Users use the Services and Console Platform including without limitation, information regarding the number of times you login to the Services, which Services you use and how, number of times you request a particular product within the Services, and the ways in which you access the Reports.
- 5.8 Intellectual Property Rights. We respect the intellectual property of others and ask that you do too. Our policy is to terminate in appropriate circumstances users who repeatedly infringe the rights of copyright holders. If you believe that any Authorized User Content posted on the Console Platform infringes your intellectual property rights or the rights of others, you can contact us at [email protected]operam.com.
- 5.9 Federal Government End Use Provisions. The Services and any software and Documentation furnished by Operam in connection therewith are “commercial items,” “commercial computer software” and “commercial computer software documentation,” as those terms are used in the Federal Acquisition Regulation and Defense Federal Acquisition Regulation Supplement. Use, duplication, or disclosure by the United States Government is subject to the restrictions set forth in these Terms.
6. Links to Third Party Websites or Resources
The Services may contain links to, or application programming interface (API)s of, third-party websites or resources or public data from such sources. We provide these links only as a convenience and, to the extent permitted by applicable law, are not responsible for the content, products, services, or data on or available from those websites or resources or links displayed on such websites. You acknowledge your responsibility for and assume all risk arising from, your use of any third-party websites or resources and you represent and warrant that you will comply with the applicable platform or other terms of such third party sites or applications.
7. Warranty Disclaimer
THE SERVICES ARE PROVIDED “AS IS,” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, TO THE EXTENT OPERAM PROVIDES ANY SERVICES ON A BETA OR TEST BASIS, OPERAM DOES NOT REPRESENT OR WARRANT ANY SUCH SERVICES WILL BE COMPLETE IN ANY RESPECT NOR THAT OPERAM WILL CONTINUE TO OPERATE OR PERFORM THE SERVICES NOR THAT YOU WILL CONTINUE TO HAVE ACCESS TO THE CONSOLE PLATFORM, THE SERVICES OR ANY PORTION OF THE CONSOLE PLATFORM AND/OR SERVICES. OPERAM DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM OPERAM OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS. FURTHER, OPERAM MAKES NO WARRANTY THAT THE CONSOLE PLATFORM, SERVICES, OR ANY OTHER OPERAM OR THIRD PARTY PRODUCTS OR SERVICES WILL BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. OPERAM MAKES NO WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY OPERAM CONTENT. OPERAM DOES NOT WARRANT OR GUARANTEE: (I) ANY RESULTS FROM THE USE OF THE SERVICES OR THE OPERAM CONTENT (INCLUDING REPORTS), (II) THAT THE SERVICES WILL MEET YOUR EXPECTATIONS, OR (III) THAT YOUR OR COMPANY’S AD-TECH OR MEDIA SPENDING BASED ON THE REPORTS GENERATED BY THE SERVICES WILL RESULT IN INCREASED PROFITS FOR THE COMPANY OR HAVE ANY EFFECT AT ALL. OPERAM SPECIFICALLY DISCLAIMS ALL LIABILITY ARISING FROM ALL THIRD PARTY APPLICATIONS OR DATA INCLUDING, ANY RESULTS OR REPORTS GENERATED FROM SUCH THIRD PARTY DATA, COMPANY’S DATA, OR AUTHORIZED USER CONTENT.
You and the Company will indemnify and hold harmless Operam and its officers, directors, employees and agents, and their successors and assigns from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal costs and attorney’s fees arising out of or in any way connected with (i) your access to or use of the Console Platform, Services, or Operam Content, (ii) your Authorized User Content, (iii) your use of any third party websites, resources, API’s or data; or (iv) your violation of these Terms or any applicable law.
9. Limitation of Liability
- 9.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY WILL OPERAM BE LIABLE TO YOU FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, THE ORDER FORM, OR THE SERVICES AGREEMENT, OR THE USE OR OPERATION OF THE SERVICES, DAMAGES ARISING FROM ANY LOSS OF DATA, LOSS OF PROFITS, LOST SALES OR BUSINESS INTERRUPTION OF ANY CHARACTER, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF OPERAM HAS BEEN ADVISED, KNEW, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT WILL OPERAM’S AGGREGATE LIABILITY TO THE COMPANY, YOU, ANY OTHER AUTHORIZED USER, OR ANY THIRD PARTY UNDER THESE TERMS EXCEED $10,000.
- 9.2 Basis of Bargain. THE LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH IN THIS SECTION 9 ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN OPERAM, YOU, AND COMPANY AND WILL APPLY TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW.
10. Changes to Terms or Services
We may update the Terms at any time, in our sole discretion, by posting the updated Terms on the Console Platform or Services, or through other communications. If you continue to use the Console Platform or Services after we have posted updated Terms, you are agreeing to be bound by the updated Terms. If you don’t agree to be bound by the updated Terms, you may not use the Console Platform or any Services. We may change or discontinue all or any part of the Services at any time and without notice, at our sole discretion.
11. Term and Termination
- 11.1 Term of Authorized User Subscriptions. These Terms commence on the date that you first access or use the Services and will continue in effect for the term of the applicable subscription period under any Services Agreement and/or the Order Form entered into by and between Operam and the Company (if applicable) or until otherwise terminated by us, unless earlier terminated as described below (the “Term”). Notwithstanding the above, your access to the Services will end when we end your or Company’s access to the Services or Company ends your access to the Services. Upon termination of these Terms for any reason, you will cease your use of the Console Platform, and all Services.
- 11.3 Surviving Provisions. Sections 2 (Definitions), 4 (Acceptable Use Policy), 5 (Proprietary Rights- but only to the extent it relates to ownership and perpetual licenses), 6 (Links to Third Party Websites or Resources), 7 (Warranty Disclaimer), 8 (Indemnification), 9 (Limitation of Liability), 11 (Term and Termination) and 12 (General Provisions) will survive any termination or expiration of these Terms.
- 12.1 Relationship of the Parties. Nothing in these Terms will be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.
- 12.2 Miscellaneous. These Terms will be governed by and construed in accordance with the laws of the State of California applicable to contracts to be performed wholly within such state. The United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under these Terms will be brought exclusively in the federal or state courts located in the Los Angeles County and the parties hereby irrevocably consent to the personal jurisdiction and venue therein. You may not assign or transfer these Terms or any rights granted hereunder, by operation of law or otherwise, without our prior written consent. Any attempted assignment, delegation or transfer of any portion of these Terms by you in violation of the previous sentence will be null and void. We may freely assign or transfer these Terms. Except as expressly set forth in these Terms, the exercise by either party of any of such party’s remedies under these Terms will be without prejudice to such party’s other remedies under these Terms or otherwise. Failure or delay by either party to enforce any provision of these Terms will not be deemed a waiver of future enforcement of that or any other provision. Except as provided herein, no amendment or modification to these Terms, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both parties. Any such waiver will not apply with respect to any repeated or continued violation of the same provision or any other provision. If a court of competent jurisdiction determines that any provision, covenant or condition of these Terms, or the application hereof to any person, entity or circumstance is deemed invalid or to any extent unenforceable, that wording insofar as it relates to that person, entity or circumstance will be deemed not to be included in these Terms, and the balance of these Terms will remain in full force and effect and continue to be binding upon the parties. These Terms constitute the entire and exclusive agreement between the parties with respect to the subject matter hereof and supersedes all prior communications, proposals, representations, agreements and understandings, whether written or oral, relating to its subject matter.
- 12.3 Conflict. Notwithstanding any other provisions of these Terms, nothing in these Terms will limit or change the terms or conditions of the Services Agreement (where applicable). In the event of any conflict or inconsistency between these Terms and the Services Agreement, the applicable provision(s) of the Services Agreement shall prevail.
- 12.4 Contact Information. If you have any questions about these Terms or the Services, please contact us at [email protected]; 1041 N Formosa Ave, Formosa West Bldg. #500, West Hollywood, CA 90046.