IMPORTANT-PLEASE READ THESE TERMS AND CONDITIONS THOROUGHLY. By clicking the “AGREE” button below, you (“User”) are certifying that you are at least eighteen (18) years of age, legally capable of entering into a binding agreement, and are consenting to be bound by the terms of this license agreement (“Agreement”). TweetReports’ acceptance of this Agreement is expressly conditioned upon User’s assent to the terms and conditions contained herein, to the exclusion of all other terms and conditions. If at any time User wishes not to be bound by this Agreement, User must immediately discontinue all use of TweetReports Services and notify TweetReports of its intent to terminate the Agreement. If User accepts this Agreement on behalf of any group or entity, User represents and warrants that it holds all necessary authority to enter into this binding Agreement for the group or entity.
1.1 Grant of License. TweetReports hereby grants User a non-exclusive, royalty free, worldwide, non-transferable, revocable, limited license to use TweetReports software, the reports it generates, and all associated documentation (“TweetReports Services”) solely for User’s benefit and as contemplated by this Agreement. This license may be terminated at any time and at the sole discretion of TweetReports as detailed in Section 3.
1.2 Limitations. User may not utilize TweetReports Services for any purpose, including commercial purposes, other than that expressly allowed by this License or associated documentation. Except as otherwise permitted by applicable law User may not, nor allow or encourage others to, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of any part, or all, of TweetReports Services. User may not sell, share, sublicense, or otherwise distribute any part or all of, TweetReports Services to any third party. Nothing in this Agreement shall be construed as limiting or otherwise restricting TweetReports from entering into any similar Agreement with a third party, including potential or current competitors of User.
1.3 Ownership. Between User and TweetReports, both parties agree that TweetReports Services, and all intellectual property rights therein are owned, or licensed by, TweetReports. All rights not expressly granted to User under this Agreement are to remain with TweetReports. User agrees that parts of the TweetReports Services are protected by copyright law, and constitute Confidential Information and/or trade secrets of TweetReports. Nothing in this Agreement shall be construed as conveying any ownership interest in, or control over, any part or all of TweetReports Services to User and User agrees not to claim or attempt to exert any such interest or control. User agrees not to remove, alter, or destroy, any copyright or proprietary notifications placed on TweetReports Services.
2 Registration. In order to use TweetReports Services User agrees to provide TweetReports with accurate and complete registration information as required and inform TweetReports of any material changes to that information. User agrees not to share its screen name or password with any third party and is responsible for all access to and use of TweetReports Services that is performed through User’s name and password, whether or not User has knowledge of or authorizes such access and use. User agrees not to: create or use a screen name or identity that falsely claims a connection with, or representation of, a third party; create or use a screen name or identity that is offensive or otherwise objectionable; or create or use a screen name or identity that uses the intellectual property rights of any third party. TweetReports reserves the right to refuse or cancel any User screen name or identity at its sole discretion.
3 Term, Termination of Agreement.
3.1 Term. This Agreement will become effective upon User clicking the “Agree” button (“Effective Date”), without further notice to User of acceptance, and will remain in effect until terminated by either party according to the terms of this Agreement.
3.2 Termination of Agreement. TweetReports maintains the right to terminate this Agreement, access to TweetReports Services, and the license granted under this Agreement, at its sole discretion and with no notice, for any, or no, reason. In the event of termination by TweetReports User’s only recourse, at TweetReports’ sole discretion, will be a refund of any unused subscription fee for the remainder of the applicable month. Upon termination User will immediately cease using TweetReports Services but will be licensed the right to continue using any reports previously generated and delivered to User during the term of the Agreement. User may choose to terminate the Agreement at any time by notifying TweetReports by email of its intent to terminate or by canceling the subscription at the end of the applicable subscription term. In the event that User terminates the Agreement prior to the end of the subscription term, User will retain access to TweetReports Services until the end of the term and be responsible for the full monthly subscription charge. TweetReports also maintains the right, at its sole discretion, to suspend User’s access to TweetReports Services, either in whole or in part with no prior notice, without terminating the Agreement. In such an event, if suspension was caused by User’s violation of the terms of this Agreement no refund of Charges will be given for monthly subscriptions.
4 No Monitoring of Content. TweetReports expressly disclaims any control, ownership, or responsibility over the content of any third party tweets, postings, links, websites, or raw data, and has no obligation to edit, monitor, or otherwise screen any of the content used in or by TweetReports Services. User understands and accepts that by accessing and using TweetReports Services it may be exposed to content that is offensive, illegal, libelous, violates applicable laws, takes User to third party websites outside of TweetReports control, or is otherwise objectionable, and agrees to hold TweetReports harmless for such content and any resulting damages resulting from that content or its use.
5 No Guarantee of Results. User accepts that TweetReports Services are necessarily dependent on the parameters and data, including but not limited to search terms, provided by User. User also understands that the results produced by TweetReports Services are further limited by the availability, amount, and quality, of information made publicly available by third parties and third party services outside of TweetReports’ control. Therefore TweetReports cannot guarantee the accuracy, availability, timeliness, or completeness of any TweetReports Services and expressly disclaims any such representation or warranty.
6 Upgrades. TweetReports retains the right to upgrade or otherwise modify TweetReports Services, and the features available at various subscription levels, at its sole discretion. Upgrades will be released to qualified Users according to their subscription level. Upon release, TweetReports retains the right to require any and all Users to upgrade to the current version of TweetReports Services and subscription levels, and stop providing support for previous versions.
7 Confidentiality. TweetReports and User agree to keep confidential, and to use only for purposes of performing under and as permitted by this Agreement, any proprietary or confidential information of the other party disclosed pursuant to this Agreement which is marked as confidential (“Confidential Information”). Confidential Information shall also include information that, to a reasonable person familiar with the disclosing party’s business and industry, could be considered of a proprietary or confidential nature. Information will not be deemed Confidential Information if such information is (A) already known by the receiving party at the time of disclosure through non restricted sources; (B) rightfully obtained from a third party who is under no confidentiality obligation relating to the Confidential Information; (C) publicly known or publicly available through authorized disclosure; or (D) ordered to be disclosed by a court of competent jurisdiction or authorized government agency, provided that the receiving party has given the disclosing party prompt notice so the disclosing party has an opportunity to defend, limit, or protect against such disclosure. TweetReports and User agree to protect the other party’s Confidential Data with the same degree of care that they would use to protect their own Confidential Information, but in no case shall use a degree of care less than is reasonable as judged by current industry standards. TweetReports and User agree to restrict access to Confidential Information to those employees or agents who need the Confidential Information to perform their obligations as part of this Agreement.
8 Charges and Payment.
8.1 Charges. User agrees to pay TweetReports the subscription fees (“Charges”) as noted on the TweetReports website. Charges may not include applicable taxes. Subscriber is responsible for all applicable taxes, excluding income tax associated with the licensing of the TweetReports Services. Charges, billed on a month-to-month basis, are subject to change at any time and at the sole discretion of TweetReports. in which case new rates will be in effect as of the next renewal period. If at any time User is unwilling to pay the amended Charges, its sole recourse is to discontinue subscription to TweetReports Services or change subscription levels.
8.2 Payment. Charges will begin to accrue on the Effective Date and will be billed to User on a monthly basis. Subscriptions are also available on a annual pre-paid, non-refundable contracts. All contracts will automatically renew for the same term using the payment method on file unless the client changes or discontinues the service. User will pay all Charges in full before access is granted to TweetReports Services. If full payment of the Charges is not made at any time User will either, at the sole discretion of TweetReports, not be granted access to TweetReports Services, or will be charged the appropriate level of subscription charges based on their usage of TweetReports Services and may thereafter be charged up to the maximum legal interest rate on any past due balance.
9 Notice. All notices to TweetReports must be submitted in writing, by either regular postal mail or email, to:
P.O. Box 486
Mt. Juliet, TN 37121-0486
Unless informed otherwise by User, all notices and Reports will be sent to User via email and at the address provided during initial User registration. Notices shall be considered delivered at the time of successful transmission by sender if by email, or upon mailing if sent by standard postal service.
10.1 TweetReports Warranties. TweetReports hereby represents and warrants that it owns, or has a valid license to use, all intellectual property rights associated with TweetReports Services. In the event that a valid claim is made that TweetReports Services violates the intellectual property rights of a third party, TweetReports, at its sole discretion, will either: modify TweetReports Services to render it non-infringing; obtain any necessary license so User may continue using TweetReports Services; replace TweetReports Services with a non-infringing equivalent; or terminate User’s license and refund any unused subscription fees. TweetReports hereby represents and warrants that TweetReports Services, as delivered to User in an unmodified state, are free from viruses, worms, or other malicious code.
10.2 User Warranties. User hereby represents and warrants that it has full authority to enter into this Agreement and that it will comply with the terms and conditions of this Agreement. User represents and warrants that it will not use TweetReports Services to harass, intimidate, or otherwise violate or infringe the rights of any third party, or any applicable law. User warrants that during the term of this Agreement, and for a period of twelve (12) months thereafter, it will not create, develop, market, or otherwise promote a product that competes, directly or indirectly, with TweetReports or TweetReports Services. User represents and warrants that any information or data it uploads to the TweetReports website or TweetReports Services, is free from viruses, worms, or other malicious code and does not violate the intellectual property rights of any third party.
11 DISCLAIMER OF WARRANTIES. EXCEPT AS EXPLICITLY PROVIDED IN SECTION 10.1, TWEETREPORTS SERVICES¬ ARE PROVIDED STRICTLY “AS IS” AND AT USER’S SOLE RISK, WITHOUT WARRANTY, REPRESENATION, OR GUARANTEE OF ANY KIND. TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, TWEETREPORTS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING BUT NOT LIMITED TO WARRANTIES OF PERFORMANCE, COMPLETENESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, OMISSIONS, TIMELINESS AND DELAYS. TWEETREPORTS MAKES NO WARRANTY THAT ACCESS TO TWEETREPORTS SERVICES WILL BE UNINTERRUPTED, ERROR FREE, SECURE, COMPLETE, OR THAT DEFECTS WILL BE CORRECTED.
12 LIMITATION OF LIABILITY. USER’S EXCLUSIVE REMEDY AND TWEETREPORTS, ITS AFFILIATES AND/OR CONTRIBUTORS, ENTIRE LIABILITY UNDER THIS AGREEMENT, IF ANY, FOR ANY CLAIM FOR DAMAGES RELATING TO USE OF TWEETREPORTS SERVICES, THAT ARE MADE AGAINST THEM, INDIVIDUALLY OR JOINTLY, WHETHER BASED IN CONTRACT, NEGLIGENCE, OR ANY OTHER THEORY UNDER LAW, SHALL BE LIMITED TO THE AGGREGRATE AMOUNT OF CHARGES PAID BY USER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL TWEETREPORTS, ITS AFFILIATES AND/OR CONTRIBUTORS BE LIABLE TO SUBSCRIBER FOR ANY LOSS, INJURY, CLAIM, LIABILITY, OR DAMAGE OF ANY KIND, REGARDLESS OF NAME OR FORM, RELATING IN ANY WAY TO (A) USER’S INABILITY OR FAILURE TO USE TWEETREPORTS SERVICES CORRECTLY OR THOROUGHLY, EVEN IF ASSISTED BY TWEETREPORTS, ITS AFFILIATES OR CONTRIBUTORS, (B) ANY DECISION MADE OR ACTION TAKEN BY USER IN RELIANCE UPON TWEETREPORTS SERVICES; (C) UNAUTHORIZED USE OR NON-PERFORMANCE OF TWEETREPORTS SERVICES; (D) ERRORS OR OMISSIONS IN TWEETREPORTS SERVICES; (E)THE USE OR ACCESS OF, OR TO, THIRD PARTY CONTENT, WEBSITES, OR SERVICES; (F) THE INABILITY TO ACCESS OR USE THIRD PARTY CONTENT, WEBSITES, OR SERVICES; (G) THE INAVAILABILITY OF THE TWEETREPORTS WEBSITE OR SERVICES; (H) THE LOSS OR DELETION OF USER DATA, SEARCHES, OR REPORTS; OR (H) ANY LOST PROFITS OR OTHER CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES RELATING IN WHOLE OR IN PART TO USER’S RIGHTS UNDER THIS AGREEMENT OR USE OF, OR INABILITY TO USE TWEETREPORTS SERVICES, EVEN IF TWEETREPORTS, ITS AFFILIATES OR CONTRIBUTORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13.1 TweetReports Indemnification. TweetReports agrees to defend, indemnify, and hold User, its affiliates, contractors, suppliers, directors, employees, and agents harmless from any and all claims, costs damages, judgments, and liabilities (including but not limited to reasonable attorneys’ fees) made by any third party and arising from TweetReports’ violation of its warranties as described in section 10.1 of this Agreement.
13.2 User Indemnification. User agrees to defend, indemnify, and hold TweetReports, its affiliates, contractors, suppliers, directors, employees, and agents harmless from any and all claims, costs, damages, judgments, and liabilities (including but not limited to reasonable attorneys’ fees) made by any third party and arising from User’s violation of the terms and conditions of this Agreement, User’s violation of the intellectual property rights of any third party so long as not directly related to any claim of infringement caused by TweetReports Services, or any use of TweetReports Services other than as permitted by this Agreement.
14 Limitation of Claims. Except for claims relating to ongoing improper use of TweetReports Services by User, no claim that arises from this Agreement, regardless of form or title, may be made more than one year after the basis for the claim is discovered by the complaining party.
15 Amendments to License. TweetReports reserves the right to modify, alter, or otherwise amend this Agreement at any time, without notice, and at its sole discretion. Updated versions of the Agreement will appear on TweetReports’ website and become effective immediately upon publication. User is responsible for regularly reviewing the Terms and Conditions of Use. Continued use of TweetReports Services by User after modification of this Agreement constitutes User’s assent to be bound by the amended terms and conditions of the Agreement.
16 Advertising. TweetReports may list User as a representative client and issue press releases listing User as a client. For this sole and limited purpose TweetReports may use and otherwise publish User’s trademarks or other identifying information. No other publicity, press release, or use of trademarks may be made in relation to this Agreement by either party absent the other party’s prior written approval.
17 Entire Agreement. This Agreement constitutes and represents the entire understanding between User and TweetReports with respect to TweetReports Services and all associated rights and obligations, and supersedes any and all prior understandings and agreements, written or oral, regardless of form or title, relating to the subject matter.
18 Force Majeure. If the performance of either party is delayed or prevented due to events beyond its reasonable control such as acts of God, fire, explosion, acts of any government, change of relevant law, war or other hostility, civil disorder, power failure, equipment failure, internet connectivity failure, industrial or labor dispute, and the like, that performance will be excused until such circumstances no longer exist.
19 Survival. Any provisions of this Agreement which impose an obligation or right after the termination or expiration date shall survive the termination or expiration of this Agreement and shall be binding on the parties, including, but not limited, to Sections: 1, 4, 5, 7, 10-17, 19, 20.
20 General Provisions. The laws of Tennessee, United States, without regard to conflict of laws principles, govern this Agreement. To the fullest extent permitted by applicable law, the parties agree that the state and federal courts sitting in Tennessee will have exclusive jurisdiction over any claim arising out of this Agreement and each party consents to the exclusive jurisdiction of such courts. Any suggestions, feedback, or comments provided to TweetReports will become the sole property of TweetReports to use as it sees fit and without any obligation to User. This Agreement as a whole, or any part thereof, may not be assigned, sublicensed or otherwise transferred by User without prior written consent from TweetReports and any attempt to do so shall be considered invalid and void. TweetReports may assign or otherwise transfer all, or part, of this Agreement without prior notice. If any provision of this Agreement is held to be invalid, illegal by a court with competent jurisdiction, or otherwise unenforceable the remainder of the Agreement will remain in place and be applied to the fullest extent possible. The failure of either party to enforce any provision of this Agreement will not constitute or be construed as a waiver of such provision or of the right to subsequently enforce such provision in the future. No partnership, agency, employment relationship, or joint venture, is created by this Agreement and both parties remain independent actors with no power to bind the other party without express prior permission. The headings and captions contained in this Agreement are inserted for convenience only and do not constitute a part of this Agreement.
April 20, 2010