CUA, ToU andAUP/ Disclaimer

Media-MGT.com

Leading in Global Media and Communication Enhancement

Customer Use Agreement, Terms of use and AUP

Updated: November 12, 2015

CUSTOMER USE AGREEMENT

1. Acceptance of Agreement

1.1 This Media-Mgt. Customer Use Agreement including the terms of use (the “Agreement”) is between Vogel Media Management B.V. (“VMM”) and the organization and/or person(s) agreeing to these terms (“Customer”). This Agreement governs access to and use of the www.media-mgt.com and/ or https://vogelmm.sharepoint.com portal and software (“Portal”) and services such as the advisory services based on the Customer Data and Stored Data (together, the “Services” or “Media-Mgt.”).By clicking or selecting “I Agree,” signing your contract for the Services or using the Services, you agree to this Agreement as a Customer.

1.2 By clicking or selecting “I Agree,” signing your contract for the Services or using the Services, you agree to this Agreement as a Customer.

1.3 If you are agreeing to this Agreement for use of the Services by an organization, you are agreeing to this Agreement on behalf of that organization and the Customer End Users. You must have the authority to bind that organization to this Agreement, otherwise you must not sign up for the Services.

1.4 Customer furthermore agrees to the Accepted Use Policy (“AUP”) of VMM. A copy of the AUP is posted in the same manner referred to in article 13.1 below.

2. Services.

2.1 This Agreement governs the terms and condition associated with the provision of the Services by VMM, and the use of these Services by the Customer.

2.2 The Portal refers to the digital platform to share documents and other information that revolve around media activities.

2.3 Provision of Services. Customer and users of Customer’s Services account (“End Users”) may access and use the Services in accordance with this Agreement.

2.4 Facilities and Data Processing. VMM or its service providers will use, at a minimum, industry standard technical and organizational security measures to transfer, store, and process Customer Data. These measures are designed to protect the integrity of Customer Data and guard against the unauthorized or unlawful access to, use, and processing of Customer Data. Customer agrees that VMM may transfer, store, and process Customer Data in locations other than Customer’s country.

2.5 “Customer Data” means Stored Data and Account Data.

2.6 “Stored Data” means the files and structured data submitted to the Services by Customer or End Users.

2.7 “Account Data” means the account and contact information submitted to the Services by Customer or End Users.

2.8 Modifications to the Services. VMM may update the Services from time to time. If VMM changes the Services in a manner that materially reduces its functionality, then VMM will inform Customer via the email address submitted through the account at www.media-mgt.com.

2.9 Software. Some Services may allow Customer to download VMM Software that may update automatically. Customer may use the Software only to access the Services. If any component of the Software is offered under an open source license, VMM will make the license available to Customer and the provisions of that license may expressly override some of the terms of this Agreement.

3. Customer Obligations

3.1 Compliance. Customer is responsible for use of the Services by its End Users. Customer and its End Users must use the Services in compliance with the Acceptable Use Policy. Customer will and be responsible to obtain from End Users any consents necessary to allow Administrators to engage in the activities described in this Agreement and to allow VMM to provide the Services.

3.2 Customer Administration of the Services. VMM will designate, as specified by Customer, one End User as “Administrator”. VMM may create user accounts for End Users as specified by Customer, whereby Customer agrees to provide all information required by VMM. Administrator may have the ability to access, disclose, restrict or remove Customer Data in or from Services accounts. Administrator may also have the ability to monitor, restrict, or terminate access to Services accounts. VMM’s responsibilities do not extend to the internal management or administration of the Services. Customer is responsible for: (i) maintaining the confidentiality of passwords and Administrator accounts; (ii) managing access to Administrator accounts; and (iii) ensuring that Administrators’ use of the Services complies with this Agreement including the AUP.

3.3 Unauthorized Use & Access. Customer will prevent unauthorized use of the Services by its End Users and will terminate any unauthorized use of or access to the Services. Customer will promptly notify VMM of any unauthorized use of or access to the Services.

3.4 Restricted Uses. Customer will not (i) sell, resell, or lease the Services; (ii) use the Services for activities where use or failure of the Services could lead to physical damage, death, or personal injury; or (iii) reverse engineer the Services, nor attempt nor assist anyone else to do so, unless this restriction is prohibited by law.

3.5 Third Party Access. Customer may allow its media (and other) vendors access to Customers’ Portal, or to for example the ‘Media’ section of the Portal. VMM will create user accounts for such vendors as specified by Customer. VMM accepts no liability of any kind for the use of the Portal by such third parties and the responsibility for such third parties to adhere to the rules of this Agreement is solely that of Customer.

3.6 Third Party Requests.

“Third Party Request” means a request from a third party for records relating to an End User’s use of the Services including information in or from an End User or Customer’s Services account. Third Party Requests may include valid search warrants, court orders, or subpoenas, or any other request for which there is written consent from End Users permitting a disclosure.

Customer is responsible for responding to Third Party Requests via its own access to information. Customer will seek to obtain information required to respond to Third Party Requests and will contact VMM only if it cannot obtain such information despite diligent efforts.

VMM will make commercially reasonable efforts, to the extent allowed by law and by the terms of the Third Party Request, to: (A) promptly notify Customer of VMM’s receipt of a Third Party Request; (B) comply with Customer’s commercially reasonable requests regarding its efforts to oppose a Third Party Request; and (C) provide Customer with information or tools required for Customer to respond to the Third Party Request (if Customer is otherwise unable to obtain the information). If Customer fails to promptly respond to any Third Party Request, then VMM may, but will not be obligated to do so.

4. Intellectual Property Rights.

4.1 Reservation of Rights. Except as expressly set forth herein, this Agreement does not grant (i) VMM any Intellectual Property Rights in Customer Data or (ii) Customer any Intellectual Property Rights in the Services, the Portal (including but not limited to all visual software, dash boards and flight recaps) or VMM trademarks and other brand features. “Intellectual Property Rights” means current and future worldwide rights under patent, copyright, trade secret, trademark, moral rights, and other similar rights.

4.2 Limited Permission. Customer grants VMM only the limited rights that are reasonably necessary for VMM to offer the Services as defined in article 1.1 above. This permission also extends to our affiliates and trusted third parties VMM works with to offer the Services.

4.3 Suggestions. VMM may, at its discretion and for any purpose, use, modify, and incorporate into its products and services, license and sublicense, any feedback, comments, or suggestions Customer or End Users send VMM or post in VMM’s forums without any obligation to Customer.

4.4 Customer List. VMM may include Customer’s name in a list of VMM’s customers on the VMM website or in promotional materials.

5. Third-Party Services.

If Customer uses any third-party service (for example services provided by third party media advisors), (a) VMM will not be responsible for any act or omission of the third party, including the third party’s access to or use of Customer Data and (b) VMM does not warrant or support any service provided by the third party.

6. Suspension

6.1 Of End User Accounts by VMM. If an End User (i) violates this Agreement or (ii) uses the Services in a manner that VMM reasonably believes will cause it liability, then VMM may request that Customer suspend or terminate the applicable End User account. If Customer fails to promptly suspend or terminate the End User account, then VMM may do so.

6.2 Security Emergencies. Notwithstanding anything in this Agreement, if there is a Security Emergency then VMM may automatically suspend use of the Services. VMM will make commercially reasonable efforts to narrowly tailor the suspension as needed to prevent or terminate the Security Emergency. “Security Emergency” means: (i) use of the Services that do or could disrupt the Services, other customers’ use of the Services, or the infrastructure used to provide the Services and (ii) unauthorized third-party access to the Services.

7. Term & Termination.

7.1 Term. This Agreement will remain in effect until Customer’s subscription to the Services expires or terminates, or until the Agreement is terminated.

7.2 Termination for Breach. Either VMM or Customer may terminate this Agreement if: (i) the other party is in material breach of the Agreement and fails to cure that breach within 60 days after receipt of written notice or (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days.

7.3 Effects of Termination. If this Agreement terminates: (i) the rights granted by VMM to Customer will cease immediately (except as set forth in this section); (ii) VMM may provide Customer access to its account at then-current fees so that Customer may export its Stored Data; and (iii) after a commercially reasonable period of time, VMM may delete any Stored Data relating to Customer’s account. The following articles will survive expiration or termination of this Agreement: 3.5 (Third party access), 3.6  (Third Party Requests), 4 (Intellectual Property Rights), 8 (Fees & Payment), 7.3 (Effects of Termination), 9 (Indemnification), 10 (Disclaimers), 11 (Limitation of Liability), 12 (Disputes), and 13 (Miscellaneous).

8. Fees & Payment.

8.1 Fees. Customer will pay, and authorizes VMM to charge using Customer’s selected payment method, for all applicable fees. Fees are non-refundable except as required by law. Customer is responsible for providing complete and accurate billing and contact information to VMM. VMM may suspend or terminate the Services if fees are past due.

8.2 Auto Renewals and Trials. If customer’s account is set to auto renewal, then VMM may automatically charge for the renewal, unless customer notifies VMM that customer wants to cancel. VMM may revise Service rates by providing Customer at least 30 days’ notice prior to the next charge.

8.3 Taxes. Customer is responsible for all taxes. VMM will charge tax when it is required to do so. If Customer is required by law to withhold any taxes, then Customer must provide VMM with an official tax receipt or other appropriate documentation.

8.4  Purchase Orders. If Customer requires the use of a purchase order or purchase order number, Customer (i) must provide the purchase order number at the time of purchase and (ii) agrees that any terms and conditions on a Customer purchase order will not apply to this Agreement and are null and void.

9. Indemnification.

9.1 By Customer. Customer will indemnify, defend, and hold harmless VMM from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party against VMM and its affiliates regarding: (i) Customer Data; (ii) Customer’s use of the Services in violation of this Agreement; or (iii) End Users’ use of the Services in violation of this Agreement.

9.2 By VMM. VMM will indemnify, defend, and hold harmless Customer from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party against Customer to the extent based on an allegation that VMM’s technology used to provide the Services to the Customer infringes or misappropriates any copyright, trade secret, patent, or trademark right of the third party. In no event will VMM have any obligations or liability under this section arising from: (i) use of any Services in a modified form or in combination with materials not furnished by VMM and (ii) any content, information, or data provided by Customer, End Users, or other third parties.

9.3 Possible Infringement. If VMM believes the Services infringe or may be alleged to infringe a third party’s Intellectual Property Rights, then VMM may: (i) obtain the right for Customer, at VMM’s expense, to continue using the Services; (ii) provide a non-infringing functionally equivalent replacement; or (iii) modify the Services so that they no longer infringe. If VMM does not believe the options described in this section are commercially reasonable, then VMM may suspend or terminate Customer’s use of the affected Services (with a pro-rata refund of prepaid fees for the Services).

9.4 General. The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party will have full control and authority over the defense, except that: (i) any settlement requiring the party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed and (ii) the other party may join in the defense with its own counsel at its own expense. The indemnities above are VMM’s and customer’s only remedy under this agreement for violation by the other party of a third party’s intellectual property rights.

10. Disclaimers.

10.1 The Services are provided “As Is”, to the fullest extent permitted under Dutch law unless provided otherwise in this Agreement.

10.2 VMM, including its related entities, or its affiliates, suppliers, distributors or any other service provider, make no warranty or guarantee of any kind, whether express, implied, statutory or otherwise, including warranties or guarantees regarding the usability of the Services for any purpose, non-infringement or to the technical conditions of the Services or any related product or website, including for example regarding the upload time, up time and accessibility of the Portal and/ or Services.

10.3 The Customer is responsible for backing up the uploaded Customer Content or stored data, regardless of the fact whether or not VMM does so.

11. Limitation of Liability.

11.1 Limitation on Indirect Liability. To the fullest extent permitted by law, except for VMM or customer’s indemnification obligations, neither customer nor VMM and its affiliates, suppliers, and distributors will be liable under this agreement for (i) indirect, special, incidental, consequential, exemplary, or punitive damages, or (ii) loss of use, data, business, revenues, or profits (in each case whether direct or indirect), even if the party knew or should have known that such damages were possible and even if a remedy fails of its essential purpose.

11.2 Limitation on Amount of Liability. To the fullest extent permitted by law, VMM’s aggregate liability under this agreement will not exceed the lesser of € 10,000.00 or the amount paid by customer to VMM hereunder during the twelve months prior to the event giving rise to liability.

11.3 Third parties. Third Parties, such as the Customer Media (and other) Vendors, understand that VMM will not accept any form of liability from such Third Party, and such Third Party waives all rights to keep VMM liable.

12. Disputes.

12.1 Informal Resolution. VMM wants to address your concerns without resorting to a formal legal proceedings. Before filing a claim, each party agrees to try to resolve the dispute by contacting the other party through the notice procedures in article 13.6

12.2 Agreement to Arbitrate. Customer and VMM agree to resolve any claims relating to this Agreement or the Services through final and binding arbitration, except as set forth below. A Mediator Federatie Nederland (“MfN”) registered mediator will administer the arbitration under the rules of the MfN, i.e. the ‘mediation reglement voor de MfN-registermediator’. The arbitration will be held in Amsterdam, or any other location both parties agree to in writing.

12.3 Formal proceeding. If a dispute is not resolved after the above described processes, then Customer or VMM may initiate a formal proceeding.

12.4 No class actions. Customer may only resolve disputes with VMM on an individual basis and will not bring a claim in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed.

13. Miscellaneous.

13.1 Terms Modification. VMM may revise this Agreement from time to time and the most current version will always be posted on the Portal. If a revision, in VMM’s sole discretion, is material, then VMM will notify Customer (by, for example, sending an email to the email address associated with the applicable account). Other revisions may be posted on the Portal or Customers’ secure Portal or terms page, and Customer is responsible for checking such postings regularly. By continuing to access or use the Services after revisions become effective, Customer agrees to be bound by the revised Agreement. If Customer does not agree to the revised Agreement terms, Customer may terminate the Services within 30 days of receiving notice of the change.

13.2 Entire Agreement. This Agreement, including Customer’s invoice, proposals and order form, constitutes the entire agreement between Customer and VMM with respect to the subject matter of this Agreement and supersedes and replaces any prior or contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter of this Agreement. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the invoice, the order form, the Agreement.

13.3 Governing Law. The Agreement will be governed by Dutch law. Any formal proceedings will be brought to the courts of Amsterdam.

13.4 Relation to the VMM General terms & Conditions. The General Terms & Condition which apply to all VMM’s services and which have been filed with the Dutch Chamber of Commerce also apply to the Services. If and when a conflict arises between the General Terms & Conditions and the terms in this Agreement, then the latter superseded the terms of the general Terms & Conditions.

13.5 Severability. Unenforceable provisions will be modified to reflect the parties’ intention and only to the extent necessary to make them enforceable, and the remaining provisions of the Agreement will remain in full effect.

13.6 Notice. Notices must be sent via registered mail or courier and are deemed given when received. Notices to Customer may also be sent to the applicable account email address and are deemed given when sent. Written notices to VMM must be sent to:

VMM B.V., Attn. www.media-mgt.com Department, Evert van de Beekstraat 310, 1118 CX Schiphol, The Netherlands

13.7 Waiver. A waiver of any default is not a waiver of any subsequent default.

13.8 Assignment. Customer may not assign or transfer this Agreement or any rights or obligations under this Agreement without the written consent of VMM.

13.9 No Agency. VMM and Customer are not legal partners or agents, but are independent contractors.

13.10 Non exclusivity. This Agreement shall not limit VMM in any way to offer the Services to other parties.

13.11 Force Majeure. Except for payment obligations, neither VMM nor Customer will be liable for inadequate performance to the extent caused by a condition that was beyond the party’s reasonable control (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance).

13.12 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement. Without limiting this section, a Customer’s End Users are not third-party beneficiaries to Customer’s rights under this Agreement.

ACCEPTABLE USE POLICY (UAP)

As referred to in article 1.4 of the Agreement, Customer agrees not to misuse the Services or help anyone else to do so. Customer amongst others agrees not to :

probe, scan, or test the vulnerability of any system or network;

breach or otherwise circumvent any security or authentication measures;

access, tamper with, or use non-public areas or parts of the Services, or shared areas of the Services you haven’t been invited or granted access to;

interfere with or disrupt any user, host, or network, for example by sending a virus, overloading, flooding, spamming, or mail-bombing any part of the Services;

modify, alter, tamper with, repair, or otherwise create derivative works of any software included in the Services (except to the extent software included in the Services is provided to Customer under a separate license that expressly permits the creation of derivative works);

except as allowed by local law, reverse engineer, disassemble, or decompile the Services or software included in the Services;

access or use the Services in a way intended to avoid incurring fees or exceeding usage limits or quotas;

send unsolicited communications, promotions or advertisements, or spam;

send altered, deceptive or false source-identifying information, including “spoofing” or “phishing”;

circumvent storage space limits;

sell the Services unless specifically authorized to do so;

use a mail address (media-mgt.com) that may have been made available for anything else but receiving media-mgt.com system notifications;

publish or share materials that are unlawfully pornographic or indecent, or that contain extreme acts of violence;

violate any local, state, national, foreign, or international statute, regulation, rule, order, treaty, or other law (each a “Law”), including, but not limited to those Laws concerning child pornography and illegal gambling;

upload content which VMM believes to be abusive, deceptive, pornographic, obscene, defamatory, slanderous, offensive, or otherwise inappropriate;

violate the law in any way, including storing, publishing or sharing material that’s fraudulent, defamatory, or misleading; or

violate the privacy or infringe the rights of others;

attempt to gain unauthorized access to any portion of the Services, Portal or any  related system, whether through hacking, password mining, or any other means;

violate the security or integrity of the Services, Portal or any  related system in any way, including, but not limited to:

Access or use any part of the Services, Portal or any related system without permission;

Monitor data or traffic on the Services, Portal or any  related system without permission;

Forge packet or email headers, or any part of a message describing its origin or route;

Upload Content that contains viruses, worms, corrupt files, Trojan horses, or other forms of corruptive code, or any other content that may compromise the Services, Portal or any  related system; or

Hack, destabilize, or adapt the Services, Portal or any  related system, or alter another website to falsely imply it is affiliated with the Services.

MONITORING AND ENFORCEMENT.
While not obligated to perform investigations, in accordance with the terms of the Customer Agreement, VMM may:

Investigate violations of this AUP or misuse of the Services, Portal or any  related system;

Investigate and help prevent security threats, fraud, or other illegal, malicious, or inappropriate activity;

Remove, disable access to, or modify any Content or resource that VMM believes violates this AUP or any other agreement VMM has with Customer for use of the Services; or

Suspend or terminate provision of Services to customer for uses that violate this AUP or any other agreement VMM has with Customer for use of the Services.

VMM may report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. VMM’s reporting may include disclosing appropriate Customer information. VMM also may cooperate with appropriate law enforcement agencies, regulators, or other appropriate third parties to help with the investigation and prosecution of illegal conduct by providing network and systems information related to alleged violations of this AUP.

REPORT VIOLATIONS. Customer can report abuse of this AUP to admin@vogelmm.com

MODIFICATIONS TO THE AUP. VMM may, in its sole and absolute discretion, modify this AUP from time to time. VMM will post notice of such changes in the same manner as described in article 13.1 of the Agreement. If Customer objects to any such changes, Customer’s sole recourse shall be to cease using the Services. Continued use of the Services following notice of any such changes shall indicate Customer’s acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.

DISCLAIMERS

All rights (including but not limited to; copyrights, intellectual-rights and usage-rights) relating to proposals for strategy and research, analyses of results, reporting templates/ formats and reports developed by or on behalf of VMM as well as any and all software developed by VMM, shall be vested in VMM, whereby we agree to transfer to the client the rights of exclusive usage and/or storage in a by the client owned (computerized) data base within the organization of the client. To prevent misuse of information, no part of any document concerned may be made public or shared with third parties in any way or in any form without the prior written consent of VMM. Distribution within companies and/or institutions affiliated to or associated with the client is deemed to be included in this publication restriction.

All Dashboards solely functions as an indicative synopsis of input VMM received. VMM does not proclaim Dashboards to be correct or complete. VMM does not accept any liability or claim on its correctness. Decision should not be made based on Dashboards (also as per our terms and conditions) but should be solely based on the source data coming from the media agency (for example: the data reflected in the purchase order/ flight recap). For more information VMM would like to refer to the source information provided by the media agency – at all times.

Disclaimer/ alert towards our customers/ clients (hereafter referred to as Client(s)):

All services and responsibilities taken by VMM are based on consultancy services and may reflect personal opinions. Clients remain solely responsible on how to act on recommendations provided by VMM and actions taken by VMM. Typing errors may have occurred. VMM does not accept any liability resulting from using our recommendations, (conceptual) contracts, concepts, thinking models, appendixes, analysis and/ or any other information issued by VMM. VMM does not make any warranty as to the completeness and correctness of such content. VMM does not provide any kind of insurance. VMM does not accept any liability for actions taken on behalf of its Clients. VMM conceptual contracts have not been checked for specific local legislation and VMM does not pertain to have legal expertise and knowhow. VMM trading conditions apply. Offers made by (media, PR, creative, etc) agencies and Media Vendors do not reflect an offer from VMM. By proceeding with any further actions Clients confirm to agree with all stated conditions and wave all rights to hold VMM liable accordingly.

Disclaimer/ alert towards (media, PR, creative, etc) agencies and Media Vendors (hereafter referred to as Supplier(s)):

All services and responsibilities taken by VMM are based on consultancy services and may reflect personal opinions. Suppliers are and remain solely responsible on how to act on recommendations provided by VMM and actions taken by VMM. Typing errors may have occurred. VMM does not accept any liability resulting from using our recommendations, (conceptual) contracts, concepts, thinking models, appendixes, analysis and/ or any other information issued by VMM. VMM does not make any warranty as to the completeness and correctness of such content. VMM does not provide any kind of insurance. VMM does not accept any liability for actions taken on behalf of its Clients. VMM conceptual contracts have not been checked for specific local legislation and VMM does not pertain to have legal expertise and knowhow. VMM trading conditions apply. VMM is not entitled – at any time – to make any (binding) commitment on behalf of its Clients towards Suppliers. VMM strongly recommends Suppliers to only accept a written commitment of the involved Client and acquire proper insurances to get paid (VMM will never accept a billing relationship with Supplier). By proceeding with any further actions Suppliers confirm to agree with all stated conditions and wave all rights to hold VMM liable accordingly.

I accept all of the above (Terms of Use, Customer use agreement and Disclaimers)