TurnTo System Terms and Conditions
The TurnTo Networks, Inc. web service (the “System” or “TurnTo System”) is the sole property of and operated by TurnTo Networks, Inc. (“TurnTo”). Your right to use the TurnTo System is conditioned upon your compliance with all obligations under these Terms and Conditions, the Data Processing Addendum, if you determine it applies to you, and the Service Order(s) all of which are referred to herein collectively as “Agreement”, as well as all payments due to TurnTo being current.
1. Use of the TurnTo System.
1.1 Provision of Services. Subject to the terms and conditions of this Agreement, TurnTo will provide you with services, particularly software as a service and IT services (collectively, “Services”) through the TurnTo Networks, Inc. web service (“System” or “TurnTo System”) as set forth in this Agreement.
1.2 License. Subject to the terms and conditions of this Agreement, TurnTo grants to you a limited, non-exclusive, non-transferable, non-sublicenseable license to access and use the TurnTo System set forth in each Order.
1.3 Limitations on Use. You shall be responsible for compliance with all applicable law, rules and regulations, if any, related to the performance of your obligations under this Agreement. You shall not, and shall not knowingly allow any third party to:
(a) use the TurnTo system or any component thereof in excess of general platform limitations described in the Documentation, or for any purpose not authorized or contemplated under this Agreement (as used herein, “Documentation” means the online product documentation, user instructions and help files made available to you by TurnTo as part of the Services, as may be updated from time to time by TurnTo and located at: support.turnto.com and developers.turnto.com or designated successor sites);
(b) display or use data from the TurnTo System in any manner that implies a partnership entity or affiliation with, sponsorship, or endorsement by TurnTo, or that can be reasonably interpreted to suggest editorial content has been authorized by, or represents the views or opinions of TurnTo or TurnTo personnel;
(c) except as expressly allowed in the TurnTo Documentation, modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the TurnTo System;
(d) transfer, sell, lease, syndicate, sub-syndicate, lend, or use for co-branding, timesharing, service bureau or other unauthorized purposes the TurnTo System or any access thereto;
(e) remove, deface, obscure or alter TurnTo’s copyright notice, trademarks or other proprietary rights notices affixed to or provided as a part of the TurnTo System, including “Powered by TurnTo” labels;
(f) use the TurnTo System in any manner that either directly or indirectly violates any federal, state or local laws applicable to you, any court, regulatory or other order or judgment against you in the United States or any other countries;
(g) use or access the System for the purpose of designing or creating a product or service competitive to TurnTo’s products and services;
(h) interfere with or disrupt the integrity or performance of the System or the data contained therein, or unreasonably burden the infrastructure utilized by TurnTo to deliver the Services;
(i) attempt to gain unauthorized access to the Services, System or its related systems or networks.
In addition to any other rights and remedies it may have at law or in equity, TurnTo has the right to automatically suspend or terminate your use of the TurnTo System for any violation of this Section 1.3.
2. Ownership Rights.
2.1 TurnTo System. You acknowledge that TurnTo owns all right, title and interest, including without limitation all Intellectual Property Rights in and to the TurnTo System, and all modifications, improvements, upgrades, derivative works and feedback related thereto, and that you do not acquire any right, title or interest in or to the TurnTo Systems except as expressly set forth herein. “Intellectual Property Rights” means any and all rights existing from time to time, including without limitation any copyrights, patents, trademarks, trade secrets or moral rights, now or hereafter in force and effect worldwide. You may not create or attempt to create a substitute or similar service or product through the use of the TurnTo System or proprietary information related thereto.
2.2 Data Ownership and Use. As between you and TurnTo, Transaction data, product and catalog data, and customer data that are provided to the TurnTo System by you, content created by users interacting with the TurnTo System through user interfaces installed on properties belonging to you, and content created by members of your team interacting with any user interface to the System, are owned exclusively by you (collectively, “Your Data”). You grant to TurnTo a limited, non-exclusive, royalty-free, revocable, world-wide license to use Your Data during the term of this Agreement to provide, improve and monitor the Services. As between you and TurnTo, you acknowledge and agree that any derivatives or improvements to TurnTo’s services or products resulting from TurnTo’s use of Your Data are the sole and exclusive property of TurnTo. TurnTo will remove any or all of Your Data from the active database of the TurnTo System promptly upon receipt of written instructions to do so; provided however that copies of Your Data retained in TurnTo’s archival files will be erased or destroyed according to TurnTo’s normal data processing and backup procedures.
If you use the TurnTo Ratings and Reviews product, you hereby authorize TurnTo to license and provide to Google Inc. (“Google”), on your behalf, those parts of Your Data required by Google for the Google Product Review Feed as described at https://developers.google.com/product-review-feeds/. At any time, by written notice, you may instruct TurnTo to discontinue providing these data to Google, however the license to Google for data shared with Google prior to the discontinuation will survive.
2.3 No Other Ownership Rights. Other than ownership of Your Data as expressly stated in Section 2.2 above, you have no ownership rights in any other data in the TurnTo System.
2.4 Branding. “Brand Names or Logos” is defined as the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party. TurnTo hereby grants to you a nontransferable, nonsublicenseable, nonexclusive license during the Term (defined below) to display TurnTo’s Brand Names or Logos for the purpose of promoting or advertising that you use the TurnTo Service. You hereby grant to TurnTo a nontransferable, nonexclusive license during the Term to use your Brand Names and Logos on any published list of TurnTo’s customers. Nothing in this Agreement will grant or will be deemed to grant to one party any right, title or interest in or to the other party’s Brand Names or Logos. All use by either party of the other’s Brand Names or Logos (including any goodwill associated therewith) will inure to the benefit of the granting party. At no time during or after the term of this Agreement will either party challenge or assist others to challenge the Brand Names or Logos of the grantor (except to the extent such restriction is prohibited by law) or the registration thereof by grantor, nor will either party attempt to register any Brand Names or Logos (including domain names) that are confusingly similar in any way (including but not limited to, sound, appearance and spelling) to those of the grantor. Neither party shall use the Brand Names or Logos of the other in any manner that negatively affects the reputation of or otherwise reflects unfavorably on the grantor.
2.5 Your Responsibilities. As between you and TurnTo, you acknowledge that you have sole responsibility for products and services marketed on your website, as well as all content and materials generated by or appearing on your website. You represent and warrant to TurnTo that you own the right to use customer data received by TurnTo, and that the use, reproduction or transmission of customer data do not and will not infringe or abuse any Intellectual Property Rights, or violate the law or regulation of any applicable jurisdiction, including without limitation any law or regulation relating to unfair competition or privacy. You hereby authorize TurnTo to reproduce, use and distribute all and any part of the customer data for the purpose of performing its services hereunder.
3. Service Providers; Authorized User Accounts; Account Protection; Confidentiality.
3.1 Service Providers. TurnTo may use third party service providers to enable functions of the TurnTo System or to assist TurnTo with the administration of the TurnTo System, for example, hosting services, email services, and moderation services. Any such service providers will be obligated to maintain the confidentiality of any information to which they have access under terms at least as protective as those set forth in this agreement, to use such information solely to provide such services to TurnTo or on TurnTo’s behalf, and to adhere to data protection practices at least as rigorous as those set forth in this agreement.
3.2 You understand and agree that TurnTo may access, preserve and disclose data owned by you and the contents of your account if compelled to do so by law or in accordance with applicable law or regulation.
3.3 Authorized Users. You may assign privileges to use the administrative areas of the Services (including all functions related to moderation, reporting, settings, and management) on your behalf only to your employees or to your independent contractors (“Authorized Users”). You may not assign privileges to use these functions, allow access to them, or allow them to be viewed in any way by anyone working for or representing the interests of competitors of TurnTo. You may not make the administrative areas of the Services accessible or visible to non-authorized users. You will promptly notify TurnTo in the event you become aware of any violation of this section and will obligate your Authorized Users to notify TurnTo of any violation of this section becoming known to them.
3.4 Account Protection. You will protect the confidentiality of all user account information, including user names and passwords. You will also obligate the Authorized Users to maintain the confidentiality of this information and will ensure that in the event an Authorized User becomes aware of any threat of compromise to the security of its login information, the Authorized User will promptly notify you. In the case of a threat or compromise to the security of login information, or if a previously Authorized User is no longer authorized to access the services (e.g. is no longer an employee), you must either immediately deactivate the concerned user account or notify TurnTo to change the login information for the account. You will also maintain the security of all System access credentials such as API keys and tokens. TurnTo will not incur any liability to you if any of your Authorized Users fail to maintain the confidentiality of their passwords for the System or Services or if you fail to secure your System access credentials.
3.5 Confidentiality. In the course of performance of this Agreement each party may receive certain information relating to the business, finances or technology of the other party (“Confidential Information”). Each party will protect the Confidential Information in its possession or control and will promptly notify the other party of any unauthorized access, theft or loss of any Confidential Information. Except as provided in this Agreement, neither party may disclose or use for any purpose, or make any copies of, any Confidential Information. “Confidential Information” does not include:
(a) Information that is or becomes generally available to the public through no fault of the receiving party;
(b) Information that the receiving party rightfully possessed prior to receipt from the disclosing party;
(c) Information that is independently developed by the receiving party;
(d) Information that the receiving party rightfully obtains on a non-confidential basis from a third party who has the right to transfer it; and
(e) Information that is required to be disclosed by the receiving party by court order or other lawful governmental action, provided that the receiving party immediately notifies the disclosing party of such requirement so that the disclosing party may attempt to obtain a protective order restricting or preventing such disclosure, and the receiving party cooperates with the disclosing Party to resist such disclosure.
Any Confidential Information will remain the disclosing party’s exclusive property. Within 30 days of termination and by written request of disclosing party, each receiving party will return or destroy, at the option of the disclosing Party, all copies of the Confidential Information of the other Party in its possession or control, provided however; that this destruction shall be subject to the provisions of Section 2.2 above where TurnTo will return your data.
4. Disclaimer of Warranties; Limitation of Liability.
4.1 Disclaimer of Warranties. TurnTo represents and warrants that Services will be performed in a workmanlike manner by individuals with sufficient skill, experience and training to fulfill the terms of the Agreement using reasonable care and skill and in accordance with the relevant Order. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE TURNTO SYSTEM AND SERVICES ARE PROVIDED “AS IS”, AND TURNTO EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TURNTO FURTHER DISCLAIMS ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AVAILABILITY AND PERFORMANCE OF THE TURNTO SYSTEM AND SERVICES.
4.2 Limitation of Liability. The aggregate liability of each party to the other and its respective affiliates for any claims under or with respect to this Agreement shall not exceed the amount paid by you to TurnTo within the last twelve months for the Services that are the subject of the claim. In no event will either party be liable (whether in contract, warranty tort (including negligence) or otherwise) to the other for any lost revenues, lost profits, incidental, indirect, consequential, special or punitive damages, or the use of or inability to use the Services, including but not limited to loss of revenues, loss of profits, loss or inaccuracy, corruption of data, or cost of procurement of substitute goods, service or technology. This exclusion applies even if such party has been advised of the possibility of such damages. The provisions of this Section 4.2 do not limit the obligations and liability of you to defend at your expense and pay damages awarded to third parties with respect to claims that you are obligated to indemnify TurnTo under Section 5 of this agreement.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY.
YOU RECOGNIZE AND AGREE THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THESE TERMS ARE A MATERIAL BARGAINED-FOR BASIS OF THESE TERMS AND THAT THEY HAVE BEEN TAKE INTO ACCOUNT AND REFLECTED IN THE DECISION BY TURNTO TO OFFER TO YOU AND BY YOU TO USE THE SERVICES AND THE PLATFORM.
You will indemnify, defend and hold TurnTo and its affiliates and their respective owners, shareholders, directors, managers, officers, affiliates, employees, attorneys, agents and representatives harmless against any losses, expenses, costs, claims and damages, including reasonable attorneys’ fees, experts fees and other reasonable costs (collectively, “Losses) arising from, incurred as a result of, or in any manner related to any third party claim resulting or arising from (i) your breach of these Terms and Conditions; (ii) your or your Authorized Users’ use of the TurnTo System or Services (iii) your failure to obtain all end user consents and permissions; (iv) your messages; (v) the submitted user generated content; (vi) your products and/or services and/or (vii) your negligence, fraud, bad faith or willful misconduct, regardless of any negligence on the part of TurnTo.
6. Payment; Taxes.
Unless otherwise agreed upon, all payments under this Agreement shall be in US dollars and invoiced via email or via US mail. Any payment not received within thirty (30) days of the invoice date shall accrue interest at a rate of one and one-half percent (1 ½%) per month. You are responsible for any applicable taxes, including sales, use, GST, VAT, customs, or excise tax, excluding only those taxes based upon the net income of TurnTo.
7. Term and Termination.
7.1 Term. Your rights under this Agreement will commence upon execution of this Agreement and an Order by both parties, and unless terminated earlier pursuant to the terms of this Agreement, expire upon the expiration or earlier termination of the last Order executed by the parties.
7.2 Termination. Without limiting TurnTo’s rights under Section 1.3 above, if either party is in material breach of this Agreement or any Order and fails to cure such material breach within thirty (30) days after receiving written notice thereof from the non-breaching party, then such non-breaching party may immediately terminate this Agreement or the applicable Order by giving written notice of termination. Your failure to timely pay to TurnTo any amounts owing under this Agreement or any Order will be considered a material breach of this Agreement. If you fail to timely pay any fees, TurnTo may, without limiting any of its other legal rights and remedies, suspend performance of services under the TurnTo System until TurnTo receives all amounts due.
7.3 Effect of Termination. Upon termination of the Agreement or any Order between you and TurnTo for any reason other than default by TurnTo (i) you will immediately pay to TurnTo any unpaid fees or other amounts that have accrued under each terminated Order prior to the effective date of termination, (ii) all rights granted herein with respect to each terminated Order shall terminate, (iii) you will immediately delete any and all TurnTo Brand Names or Logos from the website authorized under such Order and (iv) you will provide TurnTo with a written certification signed by your authorized representative certifying that all use of the TurnTo System under such website has been discontinued.
7.4 Survival. In the event of any termination or expiration of this Agreement or an Order for any reason, Sections 2.1, 2.2, 2.3, 3.5, 4, 5, 6, 7 and 11 shall survive with respect to this Agreement and any terminated Order.
7.5 Remedies. Each party acknowledges that its breach of any of the terms and conditions contained in this Agreement may cause irreparable harm to the other, the extent of which would be difficult to ascertain. Accordingly, each party agrees that, in addition to any other remedies to which the non-breaching party may be legally entitled, the non-breaching party will have the right to seek immediate injunctive relief in the event of such breach by the other party or any of its officers, employees, consultants or other agents.
During the term of this Agreement, TurnTo will maintain insurance of the type and in the amounts specified below:
8.1 Workers’ Compensation in accordance with all federal, state and local requirements and Employers Liability with a minimum limit of $1,000,000 each accident, with a policy limit of not less than $1,000,000;
8.2 Commercial general Liability, including coverage for bodily injury, property damage and personal injury liability, with a minimum limit of $1,000,000 each occurrence;
8.3 Commercial Excess Umbrella in an amount not less than $1,000,000 each occurrence and annual aggregate;
8.4 Technology Errors and Omissions coverage in an amount not less than $2,000,000 each occurrence.
All insurance obtained by TurnTo will be underwritten by an insurer having a minimum AM Best insurance rating of “A-“. Upon request, TurnTo will furnish you certificates of insurance and/or other appropriate documentation evidencing all of the coverage described in this Section 8.
9. Support; Updates and New Products; Service Level Agreement.
9.1 Support. During the term of an Order, TurnTo will provide support for integration and upkeep of the System, including technical services, project management and engineering. An annual allotment of support hours will be specified in the Order to which the support relates. TurnTo will track your hour usage, will alert you if it appears that you are likely to consume more than the allotted amount, and will provide you with your support hour balance on request. Support hours do not carry over from year to year. Engineering time required for bug fixing and for product enhancements that will be of general use to TurnTo’s customers will not be charged to your hour allotment. TurnTo will determine at its sole discretion when engineering work is specific to your use of the System (and so will be charged to your support hour allotment) and when engineering work is general.
9.2 Updates and New Products.
(a) TurnTo may make updates, modifications, and enhancements to the system at any time (“Modifications”). Incremental updates and enhancements to the System made by TurnTo for the general use of TurnTo’s customers will be provided at no charge to you. TurnTo in its sole discretion may designate certain major functional updates or enhancements as new products that will be made available to you at an additional charge. If you elect not to purchase such new products, the existing Services will remain available with the material functions and features existing prior to the release of the new product. You will be under no obligation to purchase such new products.
(b) In the event the Modifications materially degrade the overall business value of the System to you, you will have sixty (60) days from the date of the Modifications to notify TurnTo in writing of such issues. TurnTo shall then have sixty (60) days from the receipt of such notification to remedy such issues. If TurnTo fails to remedy such issues within this time period, you may terminate this Agreement or applicable Order within thirty (30) days of the end of the remedy period by written notice to TurnTo and owe only for the period up to the date on which you notified TurnTo of the issues. This is your sole remedy in the event any Modifications degrade the overall business performance of the System and is only available to you if you give written notice to TurnTo within sixty (60) days of such Modifications.
(c) From time to time, TurnTo may make Modifications to the System that require you to change feeds, installed elements of the System, or other aspects of your integration to enable the System to continue to function properly or at all (“Required Changes”). You agree to make such Required Changes in a timely manner following notification of such Required Changes, and in any event within nine (9) months following such notification. To allow you time to make the Required Changes, TurnTo will maintain prior versions of the System for at least nine (9) months following such Modifications. The requirement to make such changes or your failure to do so shall not be cause for your termination of this Agreement or applicable Order or relieve you of your payment obligations or other obligations under this Agreement or applicable Order, unless it is mutually agreed that the work required by you to make the Required Changes is greater than 50% of the work required for the initial integration of the System, in which case you may terminate this Agreement or applicable Order as of the date on which TurnTo retires the relevant prior version of the system, by written notice to TurnTo, and owe only for the period up to the date of termination. This is your sole remedy in the event any Modifications result in Required Changes and is only available to you if you give written notice to TurnTo within ninety (90) days of notification of such Modifications.
9.3 Service Level Agreement. TurnTo guarantees 99.7% availability of the TurnTo System, subject to the conditions set forth in this paragraph. TurnTo verifies availability of the TurnTo System by opening a separate connection to the TurnTo System every five minutes, with a 60-second failure threshold. A service disruption is defined as two or more consecutive failed connections (“Disruption”), and will be registered as the number of minutes between the first and last failed tests. Disruptions caused by denial of service attacks, mail flooding, or other attacks directed toward TurnTo’s network of servers, or those caused by the failure of TurnTo’s server infrastructure provider (currently Amazon), are excluded from TurnTo’s availability target. TurnTo will perform scheduled maintenance (“Maintenance”) on its servers on a regular basis. TurnTo reserves two hours per calendar month for Maintenance purposes. Disruptions due to Maintenance are excluded from TurnTo’s availability target. Maintenance is generally performed between the hours of 1:00 AM-3:00 AM ET for the U.S. server region and 1:00 AM-3:00AM GMT for the European server region. TurnTo provides you with advance notice of Maintenance whenever possible. Under certain conditions, TurnTo may need to perform urgent or emergency preventative maintenance, such as installing security patches. In such instances, TurnTo may not be able to provide you advance notice, and such disruptions are excluded from TurnTo’s availability target.
For any calendar month in which availability as described in the paragraph above is less than 99.7%, you shall receive a credit of that month’s applicable fees toward payment due under the Order that is the subject of the availability claim in future months according to the following schedule:
|Service Availability||Amount of Credit|
|< 99.7%||1 day credited|
|<98.0%||5 days credited|
|<95.0%||1 month credited|
Credits will not entitle you to any refund for fees paid for Services, or for any credit against fees due for any other Orders. Any downtime that is the basis for a successful credit claim cannot be the basis for a future claim. To receive a credit, you must submit a written request to TurnTo within 30 days of the end of the month in which the unavailability occurred. Your sole and exclusive remedy for any failure of TurnTo to meet availability in any month is the receipt of a credit as described in this paragraph; provided however, that in the event that you are entitled to credits on three (3) occasions during any consecutive twelve (12) month period, you shall have the right to terminate this Agreement or the applicable Service Order upon no less than thirty (30) days advance written notice and shall be entitled to an equitable refund for any fees paid in advance and allocable to the period following the date of termination.
10.1. In-bound Syndication. The terms of this section apply if you receive content provided by third parties (“Syndicated Content” and “Sources” respectively) through TurnTo’s syndication services (“Syndication”):
(a) Limited License. TurnTo grants you a limited, non-exclusive, revocable, worldwide license to use the Syndicated Content solely in accordance with the uses permitted and restrictions provided under this section. This agreement gives you no rights to the Syndicated Content other than those provided in this license.
(b) Permitted Use; Requirements; Restrictions
(i) Permitted Use. You may use the Syndicated Content only by displaying it in locations consistent with industry norms for content of that type on those web properties specified in a relevant Service Order and may not otherwise use or distribute it or allow third parties to access it through automated tools or in aggregate form.
(ii) Source Badging. You will display an identification of the Source for each piece of Syndicated Content alongside it, in accordance with the associated Source identification data provided to you by TurnTo.
(iii) Incentivized Content and Staff Badging. You will display an appropriate identification that the author of a piece of Syndicated Content received a monetary incentive to produce such content, including receiving a sample of the product, or was an employee of the Source organization, for all Syndicated Content where the feed provided by TurnTo indicates such was the case.
(iv) Discontinuation of Use. Upon notification by TurnTo that a Source has revoked permission for Syndication to you of their Syndicated Content, your license to use Syndicated Content from that Source is terminated and you will promptly discontinue all use of the Syndicated Content from that Source and will remove it completely from your systems. Upon termination of this Agreement or the Order under which Syndication services are provided to you, for any reason, your license to use all Syndicated Content is terminated, and you will promptly discontinue all use of all Syndicated Content and destroy all copies of it.
(v) Regular Updates. You will regularly, and in any event not less than once every two weeks, update all Syndicated Content provided to you to add any Syndicated Content newly available since the previous update and remove any Syndicated Content which has been withdrawn by the Source.
(vi) Take-down. Separately from regular updates, TurnTo may notify you that certain Syndicated Content should no longer be displayed. Promptly upon such notification, you will remove such content from all display.
TurnTo may at its option immediately suspend or terminate the Syndication Services in the event you fail to comply with any of the obligations or restrictions set forth in this Section.
(c) Qualified Sources. TurnTo will only Syndicate to you Syndicated Content from Sources that:
(i) Have granted TurnTo permission to Syndicate their content to you, a license to use the Syndicated Content for this purpose, and the right to grant you the licenses granted under this Agreement
(ii) Provide the Syndicated Content to TurnTo in TurnTo’s required format, including product data enabling effective catalog matching
(iii) Adhere to TurnTo’s requirements to ensure content authenticity, including identifying all Syndicated Content where the author received any monetary incentive to produce such content, including receiving a sample of the product
(iv) Warrant that they own or have the appropriate rights to all content which they provide for Syndication
(v) Warrant that no Personal Data is included in the content which they provide for Syndication. As used herein “Personal Data” means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic cultural or social identity of that natural person. The display name of the content author is not considered Personal Data.
(d) Exclusivity. TurnTo will be the exclusive provider of Syndication services to you.
10.2. Out-bound Syndication. The terms of this section apply if you instruct TurnTo to deliver your Syndicated Content to third parties in TurnTo’s syndication network. (Delivery of your content to third parties outside TurnTo’s syndication network, or to service providers of theirs, is considered content export, not Syndication, and is not subject to the terms of this section.)
(a) License Grant. You grant TurnTo a limited, non-exclusive, revocable, worldwide license to use your Syndicated Content for Syndication, and you grant TurnTo the right to grant to Qualified Recipients a limited, non-exclusive, royalty-free, revocable, worldwide license to use your Syndicated Content, subject to the terms of paragraph (b), below.
(i) TurnTo will deliver your Syndicated Content to all Qualified Recipients, unless you specify in writing to TurnTo individual Qualified Recipients that should or should not receive this content, in which case TurnTo will deliver your Syndicated Content only to the specified recipients.
(ii) You will follow the following policies in Syndicating your content, and TurnTo will apply these policies in providing the Syndication services under this section:
- No Cherry Picking. You will Syndicate all content moderated to a “published” status. ie You will not selectively Syndicate only certain content within this set (for example, only favorable content).
- Authenticity. You will apply appropriate tags to identifying all Syndicated Content where the author received any monetary incentive to produce such content, including receiving a sample of the product. You warrant that, to your knowledge, all Syndicated Content represents the authentic views of its authors regarding the products or services to which the content applies.
- No Personal Data. No Personal Data will be included in your Syndicated Content. As used herein “Personal Data” means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic cultural or social identity of that natural person. The display name of the content author is not considered Personal Data.
- No re-syndication. Your Syndicated Content will not contain any all content which was Syndicated to you or which you otherwise do not have the rights to provide for Syndication.
(iii) Syndicated Content is subject to the content moderation policies of the Recipient; you acknowledge recipients may not publish all of the Syndicated Content you provide.
(iv) If you determine that Syndicated Content should no longer be Syndicated, you may contact TurnTo at firstname.lastname@example.org and TurnTo will promptly remove such content from the Recipients to which it has been syndicated.
(v) At any time, by written notice, you may revoke permission for Syndication of your content to any recipients, and TurnTo will promptly stop delivery to those recipients and instruct them to cease use of the content and destroy all copies. At any time, by written notice, you may cancel all Syndication through TurnTo, and TurnTo will instruct all recipients to discontinue all use of your content and destroy all copies of it.
(c) Qualified Recipients. TurnTo will Syndicate your Syndicated Content only to “Qualified Recipients”, which are recipients that:
(i) Agree to display your Syndicated Content;
(ii) Provide TurnTo with product data enabling effective catalog matching;
- They may use the Syndicated Content only by displaying it in locations consistent with industry norms for content of that type on properties they own or control and may not otherwise use or distribute the Syndicated Content or allow third parties to access it through automated tools or in aggregate form
- They obtain no rights to the Syndicated Content other than the limited license specified above
- They will display an identification of the Source for each piece of Syndicated Content alongside it
- They will display an appropriate identification that the author of a piece of Syndicated Content received a monetary incentive to produce such content, including receiving a sample of the product, or was an employee of the Source organization
- Promptly upon notification that a Source has revoked permission for Syndication to them, they will discontinue all use of that Source’s Syndicated Content and will remove it from their systems.
Neither party may assign its rights or delegate its obligations under this Agreement without the other party’s prior written consent, except that each party may assign its rights and obligations in their entirety in connection with the acquisition, merger or sale of all or substantially of the business or stock of such party. Nothing in this Agreement should be construed to confer any rights to third party beneficiaries. The parties are independent contractors. TurnTo will not export, directly or indirectly, any technology, software or commodities of U.S. origin or having U.S. content provided by you or your direct product to any of the countries or to nationals of those countries, wherever located, expressly prohibited by the U.S. Export Administration Regulations, as modified from time to time, unless authorized by appropriate government license or regulations. Except as otherwise expressly set forth in this Agreement, nothing contained herein will be construed as creating any employment relationship, agency, partnership, joint venture or other joint enterprise between the parties. The Agreement is governed by and construed in accordance with the laws of the state of New York, without regard to conflict of law principles. Any dispute or claim arising out of or in connection with this Agreement shall be adjudicated in New York County, New York. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. This Agreement, together with all Orders and all referenced TurnTo Policies, all of which are incorporated herein by reference, constitute a single agreement which is the sole and entire agreement between TurnTo and you on the subject matter addressed, and supersede all prior understandings, agreements, representations (oral or written) and documentation relating to such subject matter, as well as the terms and conditions set forth in or on any Order, acknowledgment form or similar document you may issue, or printed on any check or other document or instrument transmitting or accompanying payment under the Agreement. TurnTo may unilaterally change or add to the terms of this Agreement at any time in its sole discretion. All notices and other communications required by this Agreement must be in writing and will be deemed given when (i) delivered personally; (ii) delivered via electronic email, upon verification of receipt; (iii) delivered by overnight courier upon written verification of receipt or (iv) delivered by certified or registered mail, return receipt requested, upon verification of receipt to an authorized representative of the applicable party. Except for payment obligations, neither party shall be liable hereunder for any failure or delay in the performance of its obligations hereunder due to strikes, shortages, riots, insurrection, fires, flood, storm, explosions, earthquakes, acts of God, war, governmental action, or any other cause which is beyond the reasonable control of the party. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect. No waiver of breach of this Agreement shall constitute a waiver of any other breach, whether of the same or any other covenant, term or condition. The subsequent acceptance by either party of any breach of a covenant, term or condition shall not constitute a waiver of the right to require performance at any time thereafter, unless such waiver is in writing and signed by such party.
Last update: September 18, 2020