Last Updated: January 31, 2015
THESE TERMS OF SERVICE (“TERMS”) CONSTITUTE A CONTRACT BETWEEN YOU AND VIUR AND GOVERN USE OF AND ACCESS TO THE SERVICE AND SITE BY YOU, AGENTS AND END-USERS WHETHER IN CONNECTION WITH A PAID SUBSCRIPTION TO THE SERVICE OR A FREE TRIAL OF THE SERVICE.
By accepting these Terms, or by accessing or using the Service or Site, or authorizing or permitting any Agent or End-User to access or use the Service, You agree to be bound by these Terms. If You are entering into these Terms on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to these Terms for that Entity and representing to Viur that You have the authority to bind such Entity and its Affiliates to these Terms, in which case the terms “Subscriber,” “You,” “Your” or related capitalized terms herein shall refer to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with these Terms, You must not accept these Terms and may not use the Service.
When used in these Terms with the initial letters capitalized, in addition to terms defined elsewhere in these Terms, the following terms have the following meanings:
Account: means all Viur accounts or instances created by or on behalf of the Subscriber or its Users within the Service or Website.
Viur: means Viur the entity or any of its successors or assignees. In these Terms, Viur may also be referred to through the use of “We”, “Us” or “Our.”
Confidential Information: means all information disclosed by You to Viur or by Viur to You which is in tangible form and labeled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. For purposes of these Terms. Notwithstanding the foregoing, Confidential Information shall not include information that (i) was already known to the receiving party at the time of disclosure by the disclosing party; (ii) was or is obtained by the receiving party by a third party not known by the receiving party to be under an obligation of confidentiality with respect to such information; (iii) is or becomes generally available to the public other than by violation of these Terms; or (iv) was or is independently developed by the receiving party without use of the disclosing party’s Confidential Information.
Documentation: means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Service provided or made available by Viur to You or Users through the Website or otherwise.
Form: means any Viur generated form executed or approved by You with respect to Your Subscription to the Service, which form may detail, among other things, the number of Users authorized to use the Service under Your Subscription to the Service, start-up costs associated with the Service, customization charges and the Service Plan applicable to Your subscription to the Service.
Other Services: means third party products, applications, services, software, products, networks, systems, directories, Websites, databases and information which the Service links to, or which You may connect to or enable in conjunction with the Service, including, without limitation, certain Other Services which may be integrated directly into Your Viur Service.
Service: means the Viur data analysis software as a service and tools provided by Viur, including, individually and collectively, Software and any Documentation. Any new or modified features added to or augmenting the Service or updates or enhancements to the Service (“Updates”) are also subject to these Terms and We reserve the right to deploy Updates at any time.
Service Plan: means the service plan and the functionality and services associated for which You subscribe with respect to each User.
User: means an individual authorized to use the Service through Your Account as a user and/or administrator as identified through a unique login.
Website: means www.viurdata.com and all other Websites owned or operated by Viur.
Software: means software provided by Viur (either by download or access through the internet) that allows a User to use any functionality in connection with the Service.
Subscription Term: means the period during which You have agreed to subscribe to the Service with respect to any individual User.
Your Data: means all electronic data, text, messages, photos or other materials submitted to the Service by You, and Users in connection with Your use of the Service.
2.1 During the Subscription Term and subject to compliance by You and Users with these Terms, You have the limited right to access and use the Service consistent with the Service Plan you subscribe to for Your internal business purposes.
2.2 A high speed Internet connection is required for proper transmission of the Service. You are responsible for procuring and maintaining the network connections that connect Your network to the Service, including, but not limited to, “browser” software that supports protocols used by Viur, including Secure Socket Layer (SSL) protocol or other protocols accepted by Viur, and to follow procedures for accessing services that support such protocols. We are not responsible for notifying You, Agents or End Users of any upgrades, fixes or enhancements to any such software or for any compromise of data, including Your Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by Viur. We assume no responsibility for the reliability or performance of any connections as described in this section.
2.3 You agree not to (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute or otherwise commercially exploit or make the Service available to any third party, other than authorized Users in furtherance of Your internal business purposes as expressly permitted by these Terms; (ii) use the Service to process data on behalf of any third party other than Users; (iii) modify, adapt, or hack the Service or otherwise attempt to gain unauthorized access to the Service or related systems or networks, this includes sharing login information with non-authorized Users; (iv) falsely imply any sponsorship or association with Viur, (v) use the Service in any unlawful manner, including but not limited to violation of any person’s privacy rights; (vi) use the Service to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person’s intellectual property rights; (vii) use the Service in any manner that interferes with or disrupts the integrity or performance of the Service and its components; (viii) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any software making up the Service; (ix) use the Service to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (x) use the Service to store or transmit any lawfully protected health information; (xi) use the Service to knowingly post transmit, upload, link to, send or store any viruses, malware, Trojan horses, or any other similar harmful software (“Malicious Software”); or (xii) try to use, or use the Service in violation of these Terms.
2.4 You are responsible for compliance with the provisions of these Terms by Users and for any and all activities that occur under Your Account, as well as for all Your Data. Without limiting the foregoing, You are solely responsible for ensuring that use of the Service to store and transmit Your Data is compliant with all applicable laws and regulations. You also maintain all responsibility for determining whether the Service or the information generated thereby is accurate or sufficient for Your purposes. Subject to any limitation on the number of individual Users available under the Service Plan for which You subscribed, access to and use of the Service is restricted to the specified number of individual Users permitted under Your subscription to the Service. You agree and acknowledge that each User will be identified by a unique username and password (“Login”) and that a User Login may only be used by one (1) individual. You will not share a User Login among multiple individuals. You and Your Users are responsible for maintaining the confidentiality of all Login information for Your Account.
2.5 In addition to Our rights as set forth in Section 7.3, Viur reserves the right, in Viur’s reasonable discretion, to temporarily suspend Your access to and use of the Service: (i) during planned downtime for upgrades and maintenance to the Service and Website (of which Viur will use reasonable efforts to notify You in advance (“Planned Downtime”); (ii) during any unavailability caused by circumstances beyond Our reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures beyond Our reasonable control (including, without limitation, inability to access the Internet), or acts undertaken by third parties, including without limitation, distributed denial of service attacks; or (iii) if We suspect or detect any Malicious Software connected to Your Account or use of the Service by You, Users or End Users; or (iv) if the account has not been paid as set forth in Section 6.1.
2.6 You are responsible for aquiring all the authorizations needed under Your company respective legislation and internal guidelines, to provide Viur with the login details of servers and systems that Viur requires, in order to make the requested analysis available.
2.7 You shall instruct Viur only with legitimate evaluations of data that You or Your company have lawfully collected or obtained. It is Your sole responsibility to ensure the compliance with the applicable data privacy laws.
3.1 Subject to the express permissions of these Terms, You and Viur will protect each other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to these Terms, each of us may use each other’s Confidential Information solely to exercise our respective rights and perform our respective obligations under these Terms and shall disclose such Confidential Information solely to those of our respective employees, representatives and agents who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information.
3.2 Viur will maintain commercially reasonable administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Your Data. These safeguards include encryption of Your Data in transmission (using SSL or similar technologies) if it is reasonably required, except for certain Other Services that do not support encryption or reasonably require it.
3.3 You agree that Viur and the service providers We use to assist in providing the Service to You shall have the right to access Your Account and to use, modify, reproduce, distribute, display and disclose Your Data solely to the extent necessary to provide the Service, including, without limitation, in response to Your support requests. Any third party service providers We utilize will only be given access to Your Account and Your Data as is reasonably necessary to provide the Service.
Viur may also access or disclose information about You, Your Account, or Users, including Your Data, in order to (i) comply with the law or respond to lawful requests or legal process; (ii) protect Viur’s or its customers’ or partners’ rights or property, including enforcement of these Terms or other policies associated with the Service; (iii) act on a good faith belief that such disclosure is necessary to protect personal safety or avoid violation of applicable law or regulation.
Each of us shall maintain all rights, title and interest in and to all our respective patents, inventions, copyrights, trademarks, source code, Website and Service likeness and interface, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). Viur’s Intellectual Property Rights also include but are not limited to the form, process, function, “look”, “feel”, “design”, layout, and photos of the Service and Website . The rights granted to You and Users to use the Service under these Terms do not convey any additional rights in the Service, or in any Intellectual Property Rights associated therewith. Subject only to limited rights to access and use the Service as expressly herein, all rights, title and interest in and to the Service and all hardware, software and other components of or used to provide the Service, including all related Intellectual Property Rights, will remain with and belong exclusively to Viur. Viur shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Service or otherwise use any suggestions, enhancement requests, recommendations or other feedback We receive from You, or Users. Viur, and Viur’s other product and service names, and logos used or displayed on the Service are registered or unregistered trademarks of Viur (collectively, “Marks”), and You may only use such Marks to identify You as a Subscriber; provided You do not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent Viur, its services or products.
If You decide to enable, access or use Other Services, be advised that Your access and use of such Other Services is governed solely by the terms and conditions of such Other Services, and We do not endorse, are not responsible or liable for, and make no representations as to any aspect of such Other Services, including, without limitation, their content or the manner in which they handle data (including Your Data) or any interaction between You and the provider of such Other Services.
You irrevocably waive any claim against Viur with respect to such Other Services. Viur is not liable for any damage or loss caused or alleged to be caused by or in connection with Your enablement, access or use of any such Other Services, or Your reliance on the privacy practices, data security processes or other policies of such Other Services. You may be required to register for or log into such Other Services on their respective websites. By enabling any Other Services, You are expressly permitting Viur to disclose Your Login as well as Your Data as necessary to facilitate the use or enablement of such Other Service.
Viur makes no claim or representation regarding Other Services, and may provide them or links to them only as a convenience. Inclusion in the Services of a link to Other Services does not imply Viur's endorsement, or sponsorship of, or affiliation with, such Third-Party Site or Third-Party Content. Viur accepts no responsibility for reviewing changes or updates to, or the quality, content, policies, nature or reliability of Other Services or Web sites linking to the Services. When you leave the Viur Website or Service, our terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Site, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
6.1 Unless otherwise indicated on a Form referencing these Terms and subject to Section 6.2, all charges associated with Your access to and use of the Service (“Subscription Charges”) and other costs indication on a Form or mutually decided upon are due in full upon commencement of Your Subscription Term. If You fail to pay Your Subscription Charges or charges for other services indicated on any Form referencing these Terms within ten (10) business days of Our notice to You that payment is due or delinquent, or if You do not update payment information upon Our request, in addition to Our other remedies, We may suspend or terminate access to and use of the Service by You and Users.
6.2 If You choose to upgrade Your Service Plan or increase the number of authorized Users, datasources or dashboards during Your Subscription Term (a “Subscription Upgrade”), any incremental Subscription Charges and other fees associated with such Subscription Upgrade will be prorated over the remaining period of Your then current Subscription Term, charged to Your Account and due and payable upon implementation of such Subscription Upgrade. In any future Subscription Term, Your Subscription Charges will reflect any such Subscription Upgrades.
6.3 No refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to downgrade or cancel Your Service Plan. Downgrading Your Service Plan may cause loss of content, features, or capacity of the Service as available to You under Your Account, and Viur does not accept any liability for such loss. Viur reserves the right to contact You about special pricing if You maintain an abnormally high amount of data usage, an unusually large number of dashboards, users, datasources or other excessive stress on the Service. Viur reserves the right to monitor Your Data for data usage and abnormal use in addition to any other purposes as set forth in this agreement.
6.4 Unless otherwise stated, Our charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are responsible for paying Taxes except those assessable against Viur based on its income. We will invoice You for such Taxes if We believe We have a legal obligation to do so and You agree to pay such Taxes if so invoiced.
6.5 Fees and any other charges for the use of the Application are described in Your Service Plan and may change from time to time. If we change them, we will give you at least 30 days notice unless it is for added customization, added Users or any additional changes made to Your Service at your request. If they do change, your continued use of the Application, as the case may be, after the change indicates your agreement with the new fees and charges after the effective date of the change. Any change to fees and other charges will not be applicable to the billing period in which the change occurs unless they are for added customization, added Users or any additional changes made to Your Service at your request.
7.1 Either You or Viur may elect to terminate Your Account and subscription to the Service as of the end of your then current Subscription Term, “Subscription Term”, by providing notice in writing or electronically, in accordance with these Terms. Unless Your Account and subscription to the Service is so terminated, Your subscription to the Service will renew for a Subscription Term equivalent in length to the then expiring Subscription Term. Unless otherwise provided for in any Form, the Subscription Charges applicable to Your subscription to the Service for any such subsequent Subscription Term shall be the charges for the Service Plan to which You have subscribed as of the time such subsequent Subscription Term commences unless there is a fee increase as per Section 6.5 of this agreement.
7.2 No refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to terminate Your subscription to the Service or cancel Your Account prior to the end of Your then effective Subscription Term. Following the termination or cancellation of Your subscription to the Service and/or Account, We reserve the right to delete all Your Data the day following your cancellation date. Your Data cannot be recovered once Your Account is cancelled.
7.3 Viur reserves the right to modify, suspend or terminate the Service (or any part thereof), Your Account or Your and/or Users’ rights to access and use the Service, and remove, disable and discard any of Your Data if We believe that You, Users or End Users have violated these Terms. Unless legally prohibited from doing so, Viur will use reasonable efforts to contact You directly via email to notify You when taking any of the foregoing actions. Viur shall not be liable to You, Users or any other third party for any such modification, suspension or discontinuation of Your rights to access and use the Service. Any suspected fraudulent, abusive, or illegal activity by You or Users may be referred to law enforcement authorities at Our sole discretion.
Viur reserves the right, without notice and at its sole discretion, to modify any portion of these Terms of Service. You and Users should continue to review these Terms of Service whenever accessing or using the Website or Service. Your use of the Website or Service after the posting of changes to these terms of service will constitute Your acceptance of these Terms of Service, as modified, and You will be bound by any such changes as of the date they are first posted to the website. Viur expressly rejects any Terms and Conditions proposed by You that are in addition to or that conflict with these terms of service and such proposed terms and conditions shall be of no force or effect.
The Website and the Service, including all server and network components are provided on an “as is” and “as available” basis, without any warranties of any kind to the fullest extent permitted by law, and Viur expressly disclaims any and all warranties, whether express or implied, including, but not limited to, any implied warranties of merchantability, title, fitness for a particular purpose, and non-infringement.
You acknowledge that Viur does not warrant that the service will be uninterrupted, timely, secure, error-free or free from viruses or other malicious software or components, and no information or advice obtained by You from Viur or through the service shall create any warranty not expressly stated in these terms. Viur does not represent or warrant that the Website, the content, or the Services are accurate, complete, reliable, current or error-free.
The quality and reliability of the data analysis results depend on the quality of the underlying data, and execution of the analysis. The user is solely responsible for both the quality and the execution of the analysis, as he provides the data source and performs the analysis. Viur does not review or assess the data.
10.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THESE TERMS, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, USERS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY SUCH PARTY OR THIRD PARTY IN CONNECTION WITH THESE TERMS OR THE SERVICE, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
10.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, VIUR’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF THESE TERMS OR OTHERWISE IN CONNECTION WITH ANY SUBSCRIPTION TO, OR USE OR EMPLOYMENT OF THE SERVICE, SHALL IN NO EVENT EXCEED THE SUBSCRIPTION CHARGES PAID BY YOU DURING THE ONE (1) MONTH PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY EXCLUDING CUSTOMIZATION FEES, START-UP FEES AND ANY OTHER NON-RECURRING SUBSCRIPTION CHARGES. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 10.2 IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF VIUR WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. VIUR HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU THE RIGHTS TO ACCESS AND USE THE SERVICE PROVIDED FOR IN THESE TERMS.
10.3 Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to You. IN THESE JURISDICTIONS, VIUR’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
You waive and shall not assert any claims or allegations of any nature whatsoever against Viur, its affiliates or subsidiaries, their sponsors, contractors, advertisers, vendors or other partners, any of their successors or assigns, or any of their respective officers, directors, agents or employees (collectively, the “Released Parties”) arising out of or in any way relating to your use of the Website, the Content or the Services, including, without limitation, any claims or allegations relating to infringement of proprietary rights, or allegations that any Released Party has or should indemnify, defend or hold harmless you or any third party from any claim or allegation arising from your use or other exploitation of the Website, the Content or the Services. You use the Website, the Content and the Services at your own risk.
Without limitation of the foregoing, neither Viur nor any other Released Party shall be liable for any direct, special, indirect or consequential damages, or any other damages of any kind, including but not limited to loss of use, loss of profits or loss of data, whether in an action in contract, tort (including but not limited to negligence) or otherwise, arising out of or in any way connected with the use of or inability to use the Website, the Content or the Services, including without limitation any damages caused by or resulting from your reliance on the Website, the Content or the Services or other information obtained from Viur or any other Released Party or accessible via the Website, the Content or the Services, or that result from mistakes, errors, omissions, interruptions, deletion of files or email, defects, viruses, delays in operation or transmission or any failure of performance, whether or not resulting from acts of god, communications failure, theft, destruction or unauthorized access to Viur or any other Released Party's records, programs or services.
In no event shall the aggregate liability of Viur, whether in contract, warranty, tort (including negligence, whether active, passive or imputed), product liability, strict liability or other theory, arising out of or relating to the use of the Website, the Content or the Services exceed any compensation paid by you for access to or use of the Website, the Content or the Services, as the case may be, during the 1 (one) month prior to the date of any claim excluding start-up fees, customization fees and other additional fees other than the Subscription Charge.
You shall defend, indemnify and hold harmless Viur and the other Released Parties from any loss, damages, liabilities, costs, expenses, claims and proceedings arising out of your use of the Website, the Content, and the Services, and if you are a Subscriber, from your Customers’ use of the Services and from the use of the Website, the Content and the Services by any person to whom you give access to Your Account (including all staff), including any claims made by any person that any of Your, and if You are a Subscriber, Your Customers’, User Content infringes the rights, including the intellectual property rights, of any third party.
12.1 You may not, directly or indirectly, by operation of law or otherwise, assign all or any part of these Terms or Your rights under these Terms or delegate performance of Your duties under these Terms without Viur’s prior written consent. We may, without Your consent, assign Our agreement with You to any affiliate or in connection with any merger or change of control of Viur or the sale of all or substantially all of Our assets provided that any such successor agrees to fulfill its obligations pursuant to these Terms. Subject to the foregoing restrictions, these Terms will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
12.2 These Terms, together with any Form(s), constitute the entire agreement, and supersede any and all prior agreements between You and Viur with regard to the subject matter hereof. Viur may amend these Terms from time to time, in which case the new Terms will supersede prior versions. You and Your Users should continue to review these Terms of Service whenever accessing or using the Website or Service. Your use of the Website or Service after the posting of changes to these terms of service will constitute Your acceptance of these Terms of Service, as modified, and You will be bound by any such changes as of the date they are first posted to the website as per Section 8. Viur’s failure to enforce at any time any provision of these Terms does not constitute a waiver of that provision or of any other provision of the Terms.
If any provision of these Terms of service is determined to be invalid, superseded, illegal or unenforceable, in whole or in part, the validity, legality or enforceability of any of the remaining provisions or notices shall not in any way be affected or impaired thereby and shall continue in full force and effect.
These Terms shall be governed by the laws of Portugal without regard to conflict of laws principles. You hereby expressly agree to submit to the exclusive personal jurisdiction of the courts of Portugal, for the purpose of resolving any dispute relating to the Terms or access to or use of the Service by You or Users.
The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.
All notices to be provided by Viur to You under these Terms may be delivered in writing by mail to the contact mailing address provided by You on any Form; or electronic mail to the electronic mail address provided for Your Account owner. You must give notice to us in writing to the following electronic address: [email protected] . All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2) business days after being deposited in the mail or with a Courier as permitted above.