Online Subscription Terms
Last updated on February 20, 2018.
Any capitalized terms used but not defined in these Tubular Subscription Terms will have the meanings (if any) specified in the Order Form. In addition, the following definitions apply.
1.1. “Authorized User” means an individual employee of Customer who has been assigned unique credentials to access and use the Software Services, whether or not that individual is accessing or using the Software Services at any particular time. An Authorized User requires a specific named individual employee email address (e.g. firstname.lastname@example.org). Aliases (e.g. email@example.com), as well as shared or group email addresses, are prohibited.
1.2. “Customer Data” means Customer’s proprietary data, if any, that its Authorized Users upload or input into the Platform (if the purchased subscription plan features Customer data ingestion).
1.3. “Order Form” means the order form executed by Customer and Tubular Labs that specifies the subscription plan being purchased by the Customer and incorporates these Tubular Subscription Terms.
1.4. “Software Services” means the subscription-based, remotely-hosted software-as-a-service product included in the Customer’s subscription plan, as specified in the Order Form and any attached Software Services Description, that are facilitated by Tubular Labs’ video intelligence software platform.
2. Subscription Services
Subject to Customer’s compliance with the terms and conditions of this Agreement, Tubular Labs will provide Customer’s Authorized Users with access to and use of the Software Services, during the Customer’s paid-up subscription period set forth in the Order Form (and any Renewals under Section 4.1), solely in support of Customer’s business operations related to the measurement and analysis of online video audience behavior and not for the benefit of any third party.
2.2. User Limits
The total number of Authorized Users is limited to the number specified in the description of the Software Services or associated package for which Customer has paid all applicable fees as set forth in this Agreement. Customer will not permit access to or use of the Software Services by anyone other than such Authorized Users. Access credentials may not be used by more than one Authorized User and, accordingly, multiple people may not share the same access credentials. An Authorized User Kick-Out (“Kick-Out”) is defined as an involuntary logout resulting from an Authorized User sharing their access credentials with another individual. In addition to its other available rights and remedies, Tubular Labs shall have the right to effectuate a Kick-Out in the event of unauthorized sharing of access credentials and may charge fees for the additional users pursuant to Section 5.3 below.
2.3. Usage Limits
Customer’s and its Authorized Users’ use of the Software Services is further subject to the usage limitations indicated in this Agreement (including limitations set forth in the Order Form, the Software Services Descriptions and in any Exhibit) and any attached Software Services Description (for example, limits on the number of Authorized Users, exports or saved searches).
2.4. Customer Responsibilities
Customer is responsible for (i) maintaining the confidentiality of any user IDs, passwords and other access credentials associated with Customer’s account, (ii) all activities that occur with respect to Customer’s account, (iii) ensuring that its, and its Authorized Users’, use of the Software Services, the data generated by the Software Services and the Confidential Information of Tubular Labs is at all times in compliance with this Agreement (including that such use is solely in support of Customer’s business operations related to the measurement and analysis of online video audience behavior and not for the benefit of any third party), (iv) the accuracy and integrity of all Customer Data and (v) deleting all data generated or derived from the Software Services and downloaded by Customer and/or any Authorized User by no later than thirty (30) days after termination of the Agreement, with Customer required to promptly provide Tubular Labs a written confirmation of such deletion.
Customer will not: (i) copy, modify, decompile, disassemble, or reverse engineer the Software Services or any associated software or materials (except to the extent that applicable law prohibits or restricts reverse engineering restrictions); (ii) provide any third parties with access to any of the Software Services, or use any of the Software Services for time sharing or similar purposes for the benefit of any third party; (iii) incorporate data obtained from the Software Services into, or retransmit or otherwise distribute such data as part of or in connection with, any other software solution, data platform, or other product, service, or technology; (iv) remove any copyright or proprietary notices contained in the Software Services or any output thereof; (v) breach, disable or tamper with, or develop or use (or attempt) any workaround for, any security measure provided or used by the Software Services; (vi) circumvent or endanger the security or normal operation of the Software Services; (vii) access the Software Services via any bot, web crawler or non-human user; or (viii) access or use (or permit a third party to access or use) the Software Services for any unlawful purpose or for purposes of monitoring the availability, performance or functionality of the Software Services or for any other benchmarking or competitive purposes.
2.6. Data Restrictions; Attribution
Customer must obtain written approval from Tubular Labs (which may be refused in Tubular Labs’ sole discretion) before disclosing or otherwise using data generated or derived from the Software Services in any, sales, marketing or other materials, or on any website or in online content, which is designed for public consumption or otherwise made accessible to third parties. If Tubular Labs consents to any such disclosure or use, Customer shall conspicuously credit Tubular Labs as the source of the data using the phrase “Data provided by Tubular Labs” or a comparable attribution approved in writing by Tubular Labs. In digital media, the attribution shall also include a hyperlink to www.tubularlabs.com.
2.7. Service Updates
Tubular Labs may update the Software Services from time to time, including by modifying, adding and/or discontinuing particular features or components of the Software Services.
3. Platform and Data Security
3.1. Security Measures
Tubular Labs will employ commercially reasonable environmental, safety and facility procedures, data security procedures and other safeguards which are designed to protect against the unauthorized accessing, use, destruction, corruption, loss or alteration of the Software Services and any Customer Data stored on Tubular Labs’ servers.
4. Term and Termination
4.1. Duration and Renewal
Unless terminated as provided below, this Agreement will remain in effect throughout the subscription term specified in the Order Form and will automatically renew for successive one-year periods (each, a “Renewal”) unless either party gives the other party written notice of non-renewal at least sixty (60) days in advance. A five percent (5%) increase in the then-current annual subscription fee shall be added to the subscription fees due for each Renewal. The initial subscription term, and all Renewals, shall be referred to as the “Term”.
4.2. Termination; Suspension
A party may terminate this Agreement on written notice for a material breach by the other party if such breach remains uncured more than thirty (30) days after the breaching party is provided written notice of the breach. In addition, Tubular Labs may suspend Customer’s rights of access, and/or terminate this Agreement, on written notice if Customer fails to make payment in full within five (5) business days following Customer’s receipt of written notice that it is late in paying an invoice.
5. Fees and Payment
Customer shall pay to Tubular Labs the fees and expenses set forth in this Agreement.
5.2. Additional User(s) Kick-Out Fees
If Tubular Labs has determined that an Authorized User(s) has exceeded five (5) Kick-Outs per month, then without waiving or limiting Tubular Labs’ other available rights or remedies with respect to such a breach (including termination or suspension), Tubular Labs reserves the right to assess additional fees to Customer calculated, in each instance, on the then-current per-user pricing of this Agreement for each instance Customer has exceeded five (5) Kick-Outs per month.
5.3. Renewal Fees; Additional Users
For each subscription Renewal, Customer will pay for the Software Services consistent with the subscription-fee rates specified in Section 4.1. If the number of individuals accessing or using the Software Services under Customer’s account exceeds the number of paid-for Authorized Users, then (without limiting Tubular Labs’ other rights and remedies, including suspension or termination) Tubular Labs may increase the subscription fees to cover the additional users (which will then be deemed Authorized Users) and Customer shall pay such additional subscription fees upon invoice. The price of additional Authorized User(s) shall be calculated, in each instance, on the then-current per-user pricing of this Agreement and, where added prior to an anniversary date the fees shall be pro-rated for the full period of use (including on a retroactive basis applied from the first day on which the additional Authorized Users made use of the Software Services). Any discount as stated in the Order Form for the Initial Subscription Term will not apply to any future Renewals.
5.4. Invoices; Payment
Subscription fees for the Software Services will be invoiced in advance at the beginning of the subscription period and each Renewal. Fees for any professional services will be invoiced according to the schedule set forth in the Order Form or in any applicable attachment or exhibit to this Agreement or any Project Plan or Statement of Work entered into by the parties hereunder (as applicable). To the extent reimbursable expenses apply, they shall be invoiced at actual cost on a monthly basis in arrears. Each invoice is due and payable within thirty (30) days of the invoice date. Invoiced amounts not paid by their due date shall be subject to a one-and-a-half percent (1.5%) per month interest fee, or the maximum amount permitted by law, whichever is less. If Customer has not paid an invoice for more than ninety (90) days after invoice due date, Company may refer collection of the unpaid amount to an attorney or collections agency. If Customer’s unpaid invoices are referred to an attorney or collections agency, Customer shall pay all reasonable attorney’s fees and/or collections agency fees.
The fees specified in this Agreement are exclusive of taxes, duties, levies, tariffs, withholdings, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”). Customer shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder. If Customer pays any withholding or similar tax under the laws of a country outside of the U.S. based on any payments to Tubular Labs under this Agreement, Customer will increase the fees otherwise due as needed to offset any impact of the withholding or other tax on Tubular Labs. Upon Customer’s request (specifying the withholding rate or other necessary information), Tubular Labs will itemize in its invoice any Taxes or offsetting fee increases payable by Customer to Tubular Labs under this Section.
6.1. Tubular Labs IP
As between Tubular Labs and Customer, the Software Services and all software and other technologies embodied in or used to provide the Software Services as well as all data generated or derived from the Software Services, and all intellectual property rights therein or relating thereto, are and shall remain the exclusive property of Tubular Labs. Similarly, all deliverables and any other work product developed, provided or made available by Tubular Labs in connection with the provision of any professional services or support to Customer, and all intellectual property rights therein or relating thereto, are and shall remain the exclusive property of Tubular Labs. Customer shall only be entitled to the rights expressly granted to it under this Agreement. Any rights not expressly granted to Customer hereunder are reserved by Tubular Labs.
6.2. Customer Data
As between Tubular Labs and Customer, the Customer Data, and all intellectual property rights therein or relating thereto, are and shall remain the exclusive property of Customer. Unless otherwise agreed in writing, Tubular Labs may use the Customer Data only for purposes of providing services to Customer.
If Customer or any Authorized User provides Tubular Labs with any suggestion, idea or proposed modification or enhancement related to the Software Services (“Feedback”), Customer grants Tubular Labs an irrevocable, perpetual, worldwide, sublicensable, transferable, royalty-free license to use, exploit and commercialize the Feedback for any purpose (including to incorporate into, or further develop, the Software Services or any other product or service) without any obligation or compensation owed to Customer, Authorized Users or anyone else.
“Confidential Information” means (subject to the exclusions below) any non-public information relating to or disclosed in the course of the Agreement that should be reasonably understood to be confidential. The receiving party will use the same care to protect Confidential Information as it uses for its own similar information, but no less than reasonable care, will not disclose Confidential Information to any third party other than those third parties which are retained by a party to support or facilitate its performance of obligations hereunder; provided that: (a) each such third party shall be subject to obligations of confidentiality and limited use which are substantially similar to those set forth herein and the receiving party shall ensure compliance with such obligations; and (b) such access and use is subject to compliance with applicable data security laws. Each party will use Confidential Information only for the purpose of fulfilling its obligations or exercising its rights expressly granted under this Agreement. The receiving party will promptly return or destroy the other party’s Confidential Information upon request.
Confidential Information does not include information that: (i) is or becomes publicly available through no fault of the receiving party; (ii) was already in possession of the receiving party without confidentiality restrictions at the time of receipt from the other party, as evidenced by written records; or (iii) was independently developed by the receiving party without violation of this Section. If a receiving party is required to disclose Confidential Information by law, the receiving party will promptly notify the disclosing party and reasonably cooperate with its efforts to limit or protect the required disclosure but will otherwise not be in violation of this Section on account of making the required disclosure.
8. Service Level Agreement
Tubular will make the Software Services available to you and provide support in accordance with the then-current version of the Tubular Labs’ Service Level Agreement (the “SLA”). A current version of the SLA is attached hereto. Tubular Labs may update its SLA from time to time, with such updated version governing, and will inform Customer of such updated version by email or other written notice. Tubular Labs will not materially reduce the SLAs during any in-progress subscription term. The remedies expressly provided in the SLA are Customer’s sole and exclusive remedy, and Tubular Labs’ entire obligation, with respect to any service-level violation.
EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT (AND WITHOUT LIMITING REMEDIES TO WHICH CUSTOMER MAY BE ENTITLED UNDER THE SERVICE LEVEL AGREEMENT, IF APPLICABLE), THE SOFTWARE SERVICES AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TUBULAR LABS DISCLAIMS, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
10.1. By Tubular Labs
Tubular Labs will indemnify, defend and hold harmless Customer against any damages awarded by a court in connection with claims, demands, suits or proceedings made or brought by a third party (“Claims”) against Customer to the extent based upon an allegation that the Software Services, as furnished by Tubular Labs hereunder and used by Customer in its unaltered form and within the scope of this Agreement, infringe any copyright or any U.S. patent or trademark rights of any third party. THE FOREGOING STATES THE ENTIRE OBLIGATION OF TUBULAR LABS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE SOFTWARE SERVICES. Tubular Labs shall have no liability under this Section 10.1 to the extent that any Claims are based on any combination of the Software Services with products, services, methods, content or other elements not furnished by Tubular Labs, or any use of the Software Services in a manner that violates this Agreement or the instructions given to Customer by Tubular Labs.
10.2. Mitigation Measures
In the event of any Claim or potential Claim covered by Section 10.1, Tubular Labs shall exert commercially reasonable efforts to modify the Software Services to make them non-infringing. If such modification is not commercially practicable, Tubular Labs shall suspend or terminate Customer’s use of the Software Services upon reasonable notice to Customer (provided, in the case of such suspension or termination, that Tubular Labs will refund to Customer a portion of fees prepaid by Customer for the then-current subscription period, prorated to the unused portion of that subscription period that is affected by the suspension or termination).
10.3. Indemnification by Customer
Customer will indemnify, defend and hold harmless Tubular Labs against any Claims arising from or related to the Customer Data or Customer’s use of the Software Services in violation of this Agreement or any applicable Tubular Labs end-user documentation.
Each party’s indemnity obligations are subject to the following: (i) the aggrieved party will promptly notify the indemnifier in writing of the applicable Claim; (ii) the indemnifier will have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle any Claim in a manner that would impair any of the aggrieved party’s rights or interests without prior written consent, which will not be unreasonably withheld); and (iii) the aggrieved party will, at the indemnifier’s expense, provide all cooperation, information and assistance reasonably requested by the indemnifier for the defense of such Claim.
11. Limitation of Liability
11.1. Wavier of Certain Damages
TO THE MAXIMUM EXTENT PERMITTED BY LAW, TUBULAR LABS SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR OTHER DAMAGES, OR FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS OR INFORMATION, ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE SERVICES OR OTHER SERVICES TO BE PROVIDED HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.2. Liability Cap
EXCEPT FOR ITS INDEMNITY OBLIGATIONS UNDER SECTION 10, THE TOTAL LIABILITY OF TUBULAR LABS FOR DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO TUBULAR LABS UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTH PERIOD PRECEDING THE INITIAL CLAIM ASSERTED AGAINST TUBULAR LABS HEREUNDER.
12.1. Press Releases
Tubular Labs reserves the right to issue a press release or similar publicity regarding the parties’ relationship under this Agreement during the Term of the Agreement. Customer will be required to obtain written approval by Tubular Labs to issue a press release or similar publicity during the Term of the Agreement.
12.2. Identification of Customer
Tubular Labs may identify Customer, by name and by logo, as a customer of the Software Services on Tubular Labs’ website and other marketing materials.
12.3. Case Study
Provided Customer is satisfied with the Software Services, Tubular Labs may develop a case study for public dissemination and marketing use by Tubular Labs describing the benefits Customer has derived from the Software Services. Customer will reasonably cooperate with such case study. Publishing shall be subject to Customer’s prior written approval, not to be unreasonably withheld.
Customer may not assign this Agreement without Tubular Labs’ prior written consent, which will not be unreasonably withheld. Any attempt by Customer to assign this Agreement, without such consent, will be null and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.
Tubular Labs may subcontract with third parties (including, without limitation, a hosting provider) to perform certain of its responsibilities under this Agreement; provided, however, that Tubular Labs will at all times remain responsible to Customer for the performance of all such responsibilities.
13.3. Force Majeure
Neither party shall be liable for any delay or failure in performance (other than non-payment of amounts owing) due to causes beyond its reasonable control.
13.4. Export Compliance
Customer agrees to comply fully with all relevant export laws and regulations of the United States and other applicable jurisdictions to ensure that neither the Software Services, nor any direct product thereof, are: (i) exported or re-exported directly or indirectly in violation of such export laws and regulations; or (ii) used for any purposes prohibited by the such export laws and regulations.
13.5. Government Rights
If Customer is the U.S. government or any agency or other division thereof, Tubular Labs’ services are furnished under this Agreement as a “commercial item,” as that term is defined and used in the U.S. Code of Federal Regulations (48 C.F.R. § 2.101) and other applicable regulations, and the government’s rights with respect to the services (and to any associated software, technical data or other materials) are limited to those expressly granted in this Agreement.
If any part of this Agreement is held to be unenforceable or invalid, in whole or in part, by a court of competent jurisdiction, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach of that or any other provision.
All notices permitted or required under this Agreement shall be in writing, will reference this Agreement, and shall be delivered in person, by overnight courier or express delivery service, or by first class, registered or certified mail, postage prepaid, or by confirmed email delivery, to the address of the party specified on the Order Form or such other address as either party may specify in writing. Such notice shall be deemed to have been given upon receipt.
13.9. Governing Law
This Agreement will be governed by both the substantive and procedural laws of California, excluding its conflict of law rules and the United Nations Convention for the International Sale of Goods. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Northern District of California and the parties irrevocably consent to the personal jurisdiction and venue therein.
13.10. Entire Agreement
Any amendment or modification to the Agreement must be in writing signed by both parties. This Agreement (including all attachments and exhibits) constitutes the entire agreement and supersedes all prior or contemporaneous oral or written agreements regarding the subject matter hereof.
This Agreement may be executed in counterparts, including by electronic transmission, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
Service Level Agreement
This Service Level Agreement (“SLA”) pertains to the Software Services Agreement to which it is attached (the “Agreement”) between Tubular Labs and Customer. All capitalized terms not defined herein shall have the meanings given to them in the Agreement. As used herein, “we” refers to Tubular Labs and “you” refers to Customer.
1. Service Availability
Our goal is to achieve 99.5% Uptime for the Software Services. For any calendar month during the Term in which we fail to provide this Uptime for any Software Services, we will, upon your written request, issue you a service credit for use against any future subscription fees in an amount equal to 10% of the applicable monthly Software Services subscription fee (which effective monthly fee will be equal to 1/12 of any annual Software Services subscription fee) that you paid for the affected month. For clarity, in no event shall the aggregate service level credit due to you for any month exceed 10%.
“Uptime” is defined as the percentage of a particular month that the applicable Software Services were available for access. However, scheduled maintenance, emergency maintenance and any other exception described below shall not factor into Uptime.
The scheduled time for maintenance is 9 p.m. to 3 a.m. PST/PDT and may be used by us with no advance notification to you.
We may expand these scheduled times provided that we notify you at least one day in advance. In addition, in the event that we in our sole discretion determine that any unscheduled (i.e., emergency) maintenance is necessary, we will use commercially reasonable efforts to notify you if commercially practicable to do so.
The rights and remedies granted under this SLA apply to you only if you are a current subscriber of the Software Services.
This SLA describes your sole remedy, and our entire obligation, if we fail to satisfy our uptime guarantee.
You shall not be entitled to any credits under this SLA in connection with any failure or deficiency of Uptime caused by or associated with:
- Circumstances beyond our reasonable control, including, without limitation: unavailability of or delay in telecommunications or third-party services; virus attacks or hackers; or failure of power or the internet;
- Scheduled maintenance, upgrades and emergency maintenance;
- Any Domain Name System (“DNS”) or Domain Registry issues outside of our direct control including DNS and Registry propagation issues and expiration;
- Customer’s acts or omissions (or acts or omissions of Authorized Users or others engaged or authorized by Customer), including, without limitation, custom scripting or coding against our API, any negligence, willful misconduct, or use of the Software Services in breach of the Agreement;
- Acts or omissions of other customers (or their users or agents) sharing the affected server(s) with you;
- Outages elsewhere on the Internet that hinder your access to the Software Services. We will assume responsibility for only those areas of the Internet reasonably considered under our control: our servers’ links to the Internet, our routers, and our servers themselves.
2. Technical Support
We will provide commercially reasonable telephone and/or email assistance for general advice and technical support, as well as technical assistance and remediation for operational issues, consistent with the level of support that Tubular Labs generally offers at no additional charge to users of the Software Services. All support inquiries should be initiated by email to firstname.lastname@example.org.
[End of Service Level Agreement]