The following terms and conditions (“Terms of Service”) together with the Order Form (the “Order” and collectively, the “Agreement”) govern all use of Memo Marketplace (the “Application”) and all products, services, features, activities, content, and data available through the Application. The Application is owned and operated by Memorandum Inc. (“Memo”). Each of Memo and Buyer (as defined in the Order) may be referred to as a “Party” or collectively as the “Parties”.
By using or accessing the Application, Buyer agrees to be bound by these Terms of Service and all terms, policies, and guidelines incorporated in the Agreement by reference. This Agreement is legally binding and governs Buyer’s use of the Application. If Buyer does not agree to all the terms and conditions of this Agreement, they may not use the Application or any content or data obtained from the Application.
1. Description of Application. Memo utilizes its proprietary technology to host and maintain the Application, a digital marketplace that allows Buyer to purchase a sublicense to such Content Data (as defined herein) for their own internal business purposes.
2. Definitions. Any capitalized terms not defined in these Terms of Service shall have the definitions given to them in the Order.
2.1. “Authorized User” means any employee or contractor of Buyer who is engaged by Buyer to perform internal functions for Buyer’s organization.
2.2. “Content” means the digital content owned by Memo’s Publisher partners from which the Content Data is derived.
2.3. “Content Data” means certain article, video, and other data related to digital content provided by Publishers to Memo, which the applicable Publisher makes available for purchase through the Application.
2.4. “Documentation” means the online help, website, information guide, and other documentation provided by Memo regarding use and setup of the Application.
2.5. “Platform”means the hardware, systems software, applications software, software utilities, telecommunications equipment, connectivity, configuration, and other facilities and equipment that Memo operates, develops, hosts, maintains, purchases, and otherwise uses in order for Buyer to access and use the Application.
2.6. “Publisher” means the entity that has granted a license to Memo to make Content Data available on the Application.
3. Access and Accounts.
3.1. The Platform is made available to Buyer solely as a hosted service, and Buyer’s access to the Application shall be provided by means of the Platform.
3.2. Memo grants to Buyer a non-exclusive, worldwide sublicense to allow Authorized Users to access the Application, Content Data, and related Documentation, solely for Buyer’s own internal business purposes as described in more detail in this Agreement.
3.3. Memo will provide or make available to Buyer any updates to the Platform and/or Application and related Documentation when such updates are generally made available by Memo to its other customers.
3.4. Memo may offer Buyer access to major improvements which create or amount to new features of the Platform and/or Application. Memo may elect to charge a separate fee for any such improvements or new features.
3.4.i. For purposes of clarity, any such major improvements or updates to the Platform and/or Application that are not new product features shall be offered to Buyer at no additional fee.
3.5. Memo may temporarily limit Buyer’s access to the Application and/or Platform during any period in which Memo reasonably believes that any Buyer accounts pose, or are at risk of being, a credible and serious threat to any part of thePlatform, provided that Memo (i) promptly informs Buyer of the alleged threat(s) and investigation status and (ii) does not limit Buyer’s access longer than is necessary to address the threat(s), if any.
3.6. Any Authorized User may create an account with which to access the Application and will be asked to identify an administrative username, password, and other contact information. Each Authorized User must use commercially reasonable efforts to safeguard any such account credentials and are solely responsible for keeping such information current.
3.6.i. Buyer shall have the right to create an unlimited number of Authorized User accounts.
3.6.ii. All activity on Buyer’s accounts on the Application shall be Buyer’s sole responsibility.
3.6.iii. Each Authorized User’s account shall be strictly limited to the individual for whom the account was created.Authorized Users shall not distribute or otherwise share login credentials with any third party.
3.6.iv. Authorized Users shall not distribute or otherwise share login credentials with any third party.
3.7. Memo shall provide Buyer with a sublicense to access purchased Content Data, which has been licensed by the Publisher to Memo. Buyer may store, print, or email such Content Data as needed solely for Buyer’s internal business purposes, subject to the restrictions set forth in Section 5.
3.8. Memo reserves the right to suspend any user accounts which have not been logged into for six (6) consecutive months or more. Any Authorized User of an account that is so suspended may request that access be restored by reaching out to email@example.com.
4. Intellectual Property and Ownership. The Parties agree as follows:
4.1. “Intellectual Property Rights” means ideas, concepts, inventions, techniques, methods, processes, algorithms, know-how, trade secrets, copyrights, mask work rights, moral rights, patent rights, rights in inventions, trademarks, trade names, and service marks, including applications for, and registrations, extensions, renewals, and re-issuances of the foregoing.
4.2. Memo owns and retains sole and exclusive title to the Intellectual Property Rights to: (i) all software and other materials used by Memo to provide the Platform,including the Application, the Documentation, and any corrections, improvements, extensions, or other modifications thereto made, created, conceived, or developed by or for Memo, and (ii) any actual or suggested modifications, design changes, improvements, and other information regarding the features and performance of the Platform. For the avoidance of doubt, Memoshall own and retain sole and exclusive title to the Intellectual Property Rights of any suggestions or ideas regarding the Platform which are relayed to a representative of Memo whether orally or in writing.
4.3. Each Publisher owns and retains the sole and exclusive title to the Intellectual Property Rights to all of its applicable Content Data. For purposes of clarity, all Content Data available on the Platform has been licensed to Memo by the applicable Publisher.
4.4. Each Party reserves all rights not expressly granted in this Agreement and disclaims all implied licenses to Intellectual Property Rights.
5. Representations and Warranties.
5.1. Buyer represents and warrants:
5.1.i. Buyer shall not share Content Data except with individual(s) who are employees, agents,representatives, consultants, or clients of Buyer’s organization.
5.1.ii. Buyer shall not publish, sublicense, modify, distribute, sell or attempt to sell,download to external hard drive, display, create derivative works from, or transfer the Content Data.
5.1.ii.1. Buyer may request permission from Memo to utilize the Content Data in a public manner, which Memo shall consider in good faith business judgement. No such usage shall occur without such explicit written permission from Memo for such specific purpose.
5.1.iii. Buyer shall not engage in any activity that results in revenue from commercializing the Content Data, including but not limited to offering the Application to any third party in a service bureau or other similar commercial capacity or developing or deriving for commercial sale any data in any form that incorporates or uses any Content Data.
5.1.iv. Buyer shall not (a) reverse engineer, disassemble, or decompile the Platform or any aspect or portion thereof, (b) alter or remove any identification, trademark,copyright, or other notice from the Platform, (c) use any robot, crawler,spider, or scraper to access the Application for any purpose without Memo’s express written permission, (d) bypass Memo robot exclusion files or other measures used to prevent or restrict access to the Application, (e) copy, modify, create a derivative work of, reverse engineer, decompile, or otherwise attempt to extract the source code of the Platform or any part thereof, unless this is expressly permitted or required by law, (f) circumvent any security mechanisms used by the Application, or (g) authorize or cause, knowingly or intentionally, others to do any of the foregoing.
5.1.v. Buyer shall not use or attempt to use any engine, software, tool, agent or other device or mechanism (including browsers, spiders, robots, avatars or intelligent agents) to navigate or search any portion of the Application, other than the search engine and search agents made available through the Application.
5.1.vi. Buyer shall not engage in any activity that (a) interferes with or disrupts the Platform and/or Application, (c) allows an Authorized User to access the Application in a manner intended to avoid incurring fees, (d) is intended to bring an intellectual property infringement claim against Memo or a Publisher,or (e) is intended to create a product or service that is competitive with Memo.
5.1.vii. Buyer shall ensure that (a) all Authorized Users and (b) any individuals who have access to the Content Data as permitted by the Agreement abide by the foregoing terms.
5.1.viii. Buyer and Buyer’s Authorized Users shall abide by all copyright notices, information or restrictions contained in, or presented with, any Content Data available on or through the Platform.
5.1.ix. Buyer shall promptly notify Memo if it discovers that any Content Data contains any personally identifying information
5.1.x. The individual agreeing to this Agreement has the full right, power, and authority to enter into and perform under this Agreement.
5.2. Memo represents and warrants that:
5.2.i. The Application, the Platform, the Content Data, and all Intellectual Property Rights related thereto, (a) do not and will not throughout the Term violate or infringe upon the Intellectual Property Rights or other legal rights of anyone, and (b) will be operated throughout the Term substantially in conformity with its Documentation.
5.2.ii. Memo shall implement and maintain technical and organizational safeguards designed to protect personally identifying information that it obtains in connection with this Agreement against accidental or unlawful destruction, loss, alteration, or unauthorized disclosure or access.
5.2.iii. Memo shall use reasonable efforts to ensure the Platform does not include or transmit any viruses, Trojan Horses, worms, spyware, or other similarly destructive or malicious code.
5.3. Memo expressly disclaims all warranties of any kind except for those made expressly in this Agreement.
6.1. The Platform, Application, and Content Data are provided without warranty of any kind, including, without limitation, warranties of performance, merchantability, non-infringement, fitness for a particular purpose, accuracy, omissions, completeness, correctness, and delays.
6.2. Memo and its affiliates shall not be liable for use by Buyer and its Authorized Users.
6.3. Any loss that results from any transactions or decisions made on the basis of materials or information provided by the Platform hereunder shall be Buyer’s sole responsibility.
6.4. The Platform is not intended to meet any fixed criteria of performance beyond what Memo in its business judgement determines is appropriate for its customers.
6.5. Although Memo endeavors to provide timely and accurate information on the Platform at all times, there may be occasions when access to or use of the Platform isinterrupted, or where the Content Data contain inaccuracies or omissions. Memo is not responsible for the accuracy, quality, content and/or legality of Content Data.
6.6. The Content Data available on the Platform is limited exclusively to that data which is licensed to Memo by Memo’s Publisher partners, and available Content Data may change from time to time. Memo does not guarantee that any subset of Content Data from any given Publisher partner shall remain available on thePlatform indefinitely.
7.1. “Indemnitees” means a Party and its affiliates and subsidiaries, and their respective officers, directors, employees, contractors, agents, representatives, successors and assigns.
7.2. “Third Party Claim” means any demand, or any civil, criminal, administrative, or investigative claim, action, arbitration, or proceeding, asserted, commenced, or threatened by a third party against an entity or person.
7.3. “Losses” means all judgments, awards, settlements, liabilities, damages, liens and claims, and all related costs, expenses, and other charges suffered or incurred as a result of or in connection with a Third Party Claim, including (i)reasonable attorneys’ fees and disbursements, (ii) costs of investigation, litigation, settlement, and judgment, and (iii) any taxes, interest, penalties, and fines with respect to any of the foregoing.
7.4. Memo will, at its sole cost and expense, indemnify, defend, and hold harmless the Indemnitees of Buyer from and against any and all Losses suffered or incurred by any of them arising out of or in connection with a Third Party Claim, whenever made, that (i) the Platform constitutes an infringement, misappropriation, unlawful use, or unauthorized disclosure of any Intellectual Property Rights of a third party, or (ii) that Memo provides Buyer a sublicense to Content Data to which Memo does not have the proper license to provide such sublicense; or (iii) any Losses which are a direct result of Memo’s gross negligence or willful misconduct.
7.5. Buyer will, at its sole cost and expense, indemnify, defend, and hold harmless the Indemnitees of Memo from and against any and all Losses suffered or incurred by any of them arising out of or in connection with a Third Party Claim, whenevermade, that (i) Buyer has breached any of the terms of the Agreement, including any representation or warranty contained herein, (ii) has improperly shared or utilized the Content Data, (iii) violated any applicable laws, rules, or regulations in connection with the Application or (iv) any Losses which are a direct result of Buyer’s gross negligence or willful misconduct.
7.6. Each Indemnitee may participate in the defense or negotiations to protect its interests, provided that no settlement will obligate or impose liability on any Indemnitee in any way without the prior written approval of the Indemnitee, including, without limitation, any determination or admission regarding such Indemnitee’s interest.
8. Billing and Payment Terms.
8.1. Buyer authorizes Memo to either (i) charge Buyer’s credit card or (ii) invoice the Buyer for the amounts indicated on the applicable Order. All payments shall be made in U.S. Dollars and, when paid,are non-cancellable, non-contingent, and non-refundable, except as otherwise provided herein.
8.2. Memo is not responsible for any additional bank fees, interest charges, finance charges, overdraft charges, or other fees resulting from charges billed by Memo.
8.3. Fees shall be listed in the applicable Order or an attachment thereto.
8.4. All listed fees are exclusive of applicable corporate business and franchise taxes, taxes based on Memo’s income or gross receipts, withholding taxes and personnel-related taxes. Buyer’s obligation to pay taxes survives any termination or expiration of this Agreement and the applicable Order, unless Buyer provides Memo with a valid tax exemption certificate or direct-pay letters to Memo no later than five (5) days after entering into the applicable Order.
8.5. For purposes of calculating sales and similar taxes, Memo will use the address set forth in the “Customer Address” field of the applicable Order as the jurisdiction to which services are tendered unless Memo is otherwise notified in writing by customer no later than five (5) days after the execution of the applicable Order.
9. Confidential Information.
9.1. “Confidential Information” means information concerning the business and affairs of the other Party and its affiliates that is obtained or received as a result of the discussions leading up to, entering into, or during the performance of this Agreement. Confidential Information shall include, without limitation, the commercial terms in the Order and any other non-public information regarding the operation of the Platform.
9.2. The receiving Party will hold all Confidential Information of the disclosing Party in trust and confidence for the disclosing Party and, except as set forth in this Agreement, the receiving Party will not disclose to any person, firm, or enterprise, or use for its own benefit, any Confidential Information of the disclosing Party.
9.3. The receiving Party will treat all Confidential Information of the disclosing Party with the same degree of care that the receiving Party treats its own confidential or proprietary information, but in no event less than reasonable care.
9.4. Confidential Information does not include any particular information that the receiving Party can demonstrate is (i) previously known to the receiving Party free from any obligation to keep it confidential, (ii) publicly disclosed by or on behalf of the disclosing Party either prior to or subsequent to the receipt of such information by the receiving Party, (iii) independently developed by the receiving Party without any access to or use of Confidential Information of the disclosing Party when such independent development is accurately documented, (iv) rightfully obtained by the receiving Party from a third party lawfully in possession of the Confidential Information and who is not bound by confidentiality obligations to the disclosing Party, or (v) currently in the public domain or required to be disclosed by law.
10. Term and Termination.
10.1. Term. The term of the Agreement shall be as specified in the applicable Order (“Order Term”). Except as otherwise specified in an Order, the Agreement will automatically renew for additional periods equal to the expiring Order Term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant Order Term.
10.2.i. Memo may, subject to the terms of this Section 10, terminate this Agreement effective upon notice if (a) Buyer’s use of the Platform, Application, or Content Data actually or allegedly violate any United States, state, local or other applicable law, regulation, rule, or order of any applicable regulatory authority or court of competent jurisdiction, (b) Memo determines in its good faith discretion and business judgement that Buyer is engaged in activities competitive with Memo.
10.2.ii. Either Party may terminate this Agreement (a) as set forth in any applicable Order, or (b) if the other Party breaches a material term of this Agreement, and such breach is not cured within thirty (30) days after notice of the breach is issued to the breaching party.
10.3. Effect of Termination.
10.3.i. In the event that this Agreement is terminated as set forth in Section 10.c, Memo shall revoke all account access for Buyers’ Authorized Users immediately upon uch termination becoming effective.
10.3.ii. Buyer agrees that its obligations under this Agreement, specifically as it relates to the use and protection of Content Data as set forth in Sections 4, 5, 7 and 12 shall continue in perpetuity even after the Agreement is terminated or otherwise expired.
12. Limitations of Liability. Neither Party shall be liable to the other Party, or any entity claiming through or under the other Party, whether as a result of single or multiple claims, for any loss of profit or income or any consequential, incidental, special, punitive, or indirect damages, whether in an action for contract or tort, in connection with the Agreement, even if the applicable Party has been advised of the possibility of such damages. In no event, except as to provided further herein, shall either party’s total liability for any cause of action, claims, damages, fees, or expenses exceed,in the aggregate, the amount of fees paid by Buyer in the one (1) month prior to the date the cause of action arose. This Section 12 shall not apply:
- to a party’s express indemnity obligations set forth in this Agreement (Section 7 – Indemnification);
- when a Party breaches its confidentiality obligations set forth in this Agreement (Section 9 – Confidentiality);
- to a Customer’s misuse of the Content Data; and,
- the alleged or actual damages arise out of or are related to a Party’s gross negligence, willful misconduct, criminal activity or fraud.
13.1. Applicable Law. This Agreement and the legal relations among the Parties hereto shall be governed by and construed in accordance with the laws of the State of New York regardless of the laws that might otherwise govern under applicable choice-of-law principles. The Parties hereto agree to submit to the jurisdiction of the federal or state courts located in New York County, New York in connection with any matters arising out of or related to this Agreement and not to assert a defense of forum non conveniens, sovereign immunity, Act of State, or analogous doctrines in connection with any action.
13.2. Relationship of Parties. This Agreement shall not 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 prior written consent.
13.3. Notices and Electronic communications. All notices given in accordance with the provisions of this Agreement shall be in writing and sent by first class mail or email to the addresses indicated in the applicable Order or such other address as either Party may indicate in writing by at least ten (10) days’ written notice to the other Party. The Parties agree to receive electronic documents and accept electronic signatures (information attached or logically associated with such document and clicked or otherwise adopted with an intent to sign)including in counterparts that shall be valid substitutes for paper-based documents and signatures, and the legal validity of a transaction will not be denied on the ground that it is not written but is in digital or electronic format.
13.4. Modifications. a. Buyer agrees that Memo may modify the terms of this Agreement or any policy governing the Platform from time to time, including pricing, and that Buyer’s right to access the Platform is conditioned on an ongoing basis with Buyer’s compliance with the then-current version of the Agreement. Memo will notify its customers of any material revisions or modifications to the Agreement by (a) posting a notice on the Application for 30 days following any revisions or modifications to this Agreement, (b) posting a notice on the Application the first time that a Buyer visits the Application following such revisions or modifications, or(c) providing direct notice of such changes in a communication to Buyer’s designated contact. By continuing to use the Application following receipt of such notice, Buyer consents to the revised or modified terms of this Agreement. Buyer further agrees to visit the Application at least once every 30 days to review any notices of revisions or modifications to this Agreement.
13.4.i. Buyer may only modify this Agreement by obtaining Memo’s written consent in an agreement signed by an authorized representative of Memo.
13.5. Severability. Should any provision of this Agreement be held to be void and invalid, unenforceable, or illegal by a court,the validity and enforceability of the other provisions will not be affected.
13.6. Waivers. A failure by any Party to enforce any term of this Agreement upon its breach does not waive enforcement of the term that was violated, nor does it waive enforcement of any other term of this Agreement. To be effective, any waiver of rights under this Agreement must be in writing and signed by the Party waiving such right(s).
13.7. Assignment. Neither Party may assign,sublicense, or otherwise transfer this Agreement nor any part or portion without the other Party’s prior written consent, which shall not be unreasonably withheld, provided that either Party may assign this Agreement toa successor or purchaser in the event of a merger, acquisition, or sale of all or substantially all of the assets of such Party without such consent.
13.8. Complete Agreement. This Agreement is the final,complete, and exclusive Agreement concerning its subject matter, superseding any prior or contemporaneous written or oral agreements. There are no other representations, warranties, agreements or undertakings, written or oral, between or among the Parties to this Agreement, or those released in it, that are not fully expressed in this writing.