Baro Labs SRL (“Baro Labs”, “Smartan.ai”) and the publisher (“Publisher”) hereby agree to the terms and conditions set forth in these Terms of Service (“Terms”). These Terms confirm and clarify respective rights and obligations between Baro Labs and Publisher in connection with Publisher’s access to and use of the Smartan.ai Services (“Services”). By clicking on the “Accept” button below or signing a subscription agreement Publisher indicates that Publisher has read, understood and agreed to all of the terms and conditions in these Terms.
Smartan.ai Services include observing and analyzing behavior of users of Publisher’s website and/or mobile application, and creating personalized interest graphs for each user, as well as providing analytics reports on the interests and behavior of Publisher’s audience.
Baro Labs also provides access to the online Smartan.ai Dashboard with a set of login credentials specific to the Publisher, which allows Publisher to view analytics reports. Publisher is responsible for maintaining control over the login credentials and access to the Dashboard. Baro Labs is not responsible for any adverse effects caused by any actions performed in the Dashboard using Publisher’s credentials.
Baro Labs has no obligation under these Terms for any claim, which results from modification of the Services or Code by anyone other than News360, or installation or use of Code by Publisher not as directed in the Documentation.
Publisher cannot modify, change, edit, alter, bypass or reorder any aspect of the Code provided by Baro Labs, except as directed in the Documentation. Publisher agrees that any Code given to Publisher by Baro Labs to use on a certain website and/or mobile application should only be used on that website and/or mobile application. Publisher shall not intercept, copy, cache or store any information transferred or collected by the Code.
Publisher’s website and/or mobile application may not include, facilitate or promote excessive profanity, inappropriate language or material; obscene, defamatory, discriminatory, deceptive, libelous, pornographic, violent, indecent, offensive, contrary to public policy, or otherwise unlawful or infringing under any applicable laws content; any type of illegal activity; content lacking in necessary authorizations, approvals, consents or licenses.
Publisher’s website and/or mobile application using the Code should not contain malware, pop-ups, redirect users to unwanted websites, modify browser settings, or otherwise interfere with website and/or mobile application navigation.
Publisher Grants Baro Labs the Following Rights:
All user information stored on Publisher’s website and/or mobile application shall remain the sole property of Publisher.
Publisher hereby grants to Baro Labs a worldwide, royalty-free, non-exclusive, irrevocable license to store, aggregate, analyze and otherwise use for the purposes of providing the Services, deriving insights about users’ interests, conducting research, performing aggregate analysis, customizing and targeting advertising content, as well as for internal reporting and marketing purposes any data collected by Baro Labs from Publisher’s users and/or transmitted by Publisher to Baro Labs in connection with its use of the Services.
Baro Labs shall own and retain all right, title, and interest in and to the Services (except for any licensed content and software components included therein). Publisher agrees not to copy, alter, modify, or create derivative works of the Services or otherwise use the Services in any way that violates these Terms.
Baro Labs may aggregate the data resulting from Publisher’s use of the Services. Baro Labs retains all rights, title and interest in and to all data aggregated and/or generated by Baro Labs through Publisher’s use of the Services, including aggregated data about Publisher’s website and/or mobile application users’ behavior and interests, any reports, aggregated analysis or other aggregated data made available to Publisher through the Dashboard. Publisher acknowledges and agrees that it does not acquire any ownership rights to such aggregated data provided to Publisher through the Dashboard. Publisher acknowledges and agrees that News360 has the right to share anonymized aggregated data with advertisers and other third parties.
Subject to Publisher’s compliance with these Terms, Baro Labs grants Publisher a limited, non-exclusive, non-transferable, non-sublicensable, non-assignable, revocable license to access and use the Services for their intended purposes only. Publisher agrees that it may not use the Services for any other purpose, or copy or distribute the Code except as specifically allowed in these Terms.
Subject to Publisher’s compliance with these Terms, Baro Labs grants Publisher a limited, non-exclusive, non-transferable, non-sublicensable, non-assignable, irrevocable license to use any data accessed through the Dashboard during Publisher’s use of Services.
Baro Labs reserves the right to add, modify, remove or amend all or any portion of the Services in any way at any time in its sole discretion, without notice. Baro Labs reserves the right to terminate Publisher’s license to use the Services at any time and for any reason without liability incurred.
Other than as expressly granted above, no other rights are granted to Publisher, including without limitation any and all Baro Labs’s patents, copyrights, trade secrets, trademarks, service marks, publicity rights, and other proprietary rights.
Baro Labs may perform any of its obligations hereunder through one or more agents, subcontractors or third-party service providers, provided that Baro Labs remains responsible to Publisher for the performance of the Services.
Baro Labs offers free and paid Smartan.ai subscription plans. A paid subscription may be procured via a subscription agreement entered into between Publisher and Baro Labs.
For Publishers that purchase paid subscription plans, fees and payment schedules are specified in the subscription agreements. Payment obligations are non-cancelable and, except as expressly stated the subscription agreement, fees paid are non-refundable.
Baro Labs’s relationship with Publisher shall be that of an independent contractor and nothing in these Terms shall be construed to create a partnership, joint venture, agency or employer-employee relationship between the parties. Neither party is the agent of the other, and neither party shall have any authority to make any agreement, representation, or commitment on behalf of the other party, or otherwise bind the other party in any respect.
Any information marked “Confidential” or disclosed or provided under circumstances that would lead a reasonable person to conclude that the information was confidential provided by one party to another shall be deemed Confidential Information of the disclosing party. The following information is not considered Confidential Information under these Terms: (i) information that was lawfully in the possession of the receiving party at the time of the disclosure, or subsequently becomes known to the receiving party from a third party free of any obligation of confidentiality with respect to the information disclosed; (ii) information that is known to the public or is no longer confidential through no fault of the receiving party; and (iii) information that is independently developed by employees or agents of receiving party without reference to the other party’s Confidential Information.
Confidential Information shall be kept in the strictest confidence and shall be protected by all reasonable and necessary security measures. Confidential Information shall not be released by the receiving party to anyone except an employee or agent who has a need to know same, and who is bound by confidentiality obligations, or used for any purpose, except in connection with its rights and obligations under these Terms, unless permitted in writing by the other party. Notwithstanding the foregoing, either party may disclose Confidential Information strictly necessary to comply with the demands of any court order, law or governmental agency, or as necessary to establish the rights of either party under these Terms, provided, however, that the party required to make the disclosure shall give the other party reasonable notice of the requirement.
Baro Labs is the sole and exclusive owner of all rights, titles and interest, including, but not limited to, copyright, trademark and other intellectual property rights, contained in, arising from, or related to the Services or technology developed by Baro Labs, or result from or are suggested by any work performed by Baro Labs for Publisher.
Any additional technology, products and services created by Baro Labs on the basis of analysis of aggregated Publisher data or through any user data collected by the Code will be the property of Baro Labs.
Publisher hereby permits Baro Labs to identify Publisher as a client, to use Publisher's name and its trademarks, service marks, logos, symbols and/or brand names in connection with proposals to prospective clients, to display Publisher's marks on Baro Labs and Smartan.ai websites and to hyperlink from Baro Labs and Smartan.ai websites to Publisher's website, and to otherwise refer to Publisher in print or electronic form for marketing or reference purposes.
Baro Labs and Publisher shall each have the right to issue a press release announcing their relationship.
Publisher represents and warrants to Smartan.ai that it has obtained or established, or shall have obtained or established prior to any processing of personal data under these Terms, consent or other lawful basis reasonably required to process, and to authorize Smartan.ai to process on Publisher’s behalf, personal data of Publisher’s Users as contemplated by these Terms.
Publisher is responsible for complying with all applicable privacy and data protection laws and regulations applicable to Publisher’s use of the Services.
Each party represents and warrants to the other that: (i) it has all right, power, and authority necessary to enter into these Terms and perform its obligations under it; and (ii) the execution of these Terms and the performance of its respective obligations and duties thereunder do not and will not violate any agreement to which such party is a party or by which it is otherwise bound.
Publisher represents and warrants that the Publisher’s website and/or mobile application content are either owned by Publisher or properly licensed, and neither such Publisher’s material nor News360’s use of same will infringe upon the rights of any third party, and that such material does not violate any applicable laws, rules and regulations and will not contain any material which may be harmful, abusive, obscene, threatening or defamatory.
Baro Labs Representations and Warranties: EXCEPT AS MAY BE EXPRESSLY SET FORTH IN THESE TERMS, BARO LABS MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE SERVICES RENDERED. BARO LABS PROVIDES THE SERVICES “AS IS.” BARO LABS EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, OR ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, OR THAT THE SERVICES WILL OPERATE UNINTERRUPTED, SECURE OR ERROR FREE (EXCEPT TO THE EXTENT PROHIBITED UNDER APPLICABLE LAWS).
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (A) NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, PROFITS, USE, DATA OR COST OF COVER, OR OTHER ECONOMIC ADVANTAGE, IN CONNECTION WITH THESE TERMS OR THE SERVICES, HOWEVER IT ARISES, WHETHER FOR BREACH OR IN TORT; AND (B) BARO LABS’S AGGREGATE LIABILITY HEREUNDER SHALL NOT EXCEED $10,000; AND (C) NEITHER PARTY MAY INSTITUTE A LEGAL PROCEEDING ALLEGING A CAUSE OF ACTION WHICH ACCRUED MORE THAN ONE (1) YEAR PRIOR TO THE COMMENCEMENT OF SUCH PROCEEDING.
Each party shall defend, indemnify and hold harmless the other party and its respective agents, subsidiaries, directors, officers, employees, contractors against any and all third party claims, losses, liabilities, damages, settlements, expenses and costs which arise out of or relate to any material breach of such party's obligations under these Terms. In connection with any such claim: (i) the indemnified party shall provide prompt written notice to the indemnifying party of any such claim (the failure to provide such prompt notice shall not relieve the indemnifying party of its indemnification obligations herein, except to the extent it has been damaged thereby), and provide to the indemnifying party all available information and assistance; (ii) the indemnifying party shall have sole control of the defense or settlement of the claim; (iii) at the indemnifying party's request and expense, the indemnified party shall cooperate in the investigation and defense of such claim.
These Terms are effective from the day Publisher clicks on the “Accept” button or signs a subscription agreement, and shall continue until Publisher cancels the Services or Baro Labs terminates the Services.
Publisher may cancel the Services at any time for any reason with prior written notice to Baro Labs. Upon cancelling the Services, Publisher shall remove the Code and all Baro Labs’s scripts and materials from its website and/or mobile application.
Baro Labs may terminate the Services at any time for any reason with prior written notice to Publisher, in which case Publisher shall immediately cease all use of the Services, and remove the Code and all Baro Labs’s scripts and materials from its website and/or mobile application; and all revocable licenses, and any other rights and services provided by Baro Labs to Publisher, shall cease immediately.
Upon termination of these Terms for any reason, Publisher will have no further access to the Dashboard.
These Terms may be modified by Baro Labs in its sole discretion at any time with subsequent notice to Publisher within ten (10) days of modification. By continuing to use the Services, Publisher agrees to the updated Terms. Upon receipt of notification, the Publisher shall take all the necessary steps to comply with the changes within thirty (30) days.
All provisions of these Terms that by their nature would reasonably be expected to survive will survive termination or expiration of these Terms, including, but not limited to, ownership, warranties, limitation of liability, licenses and data use, subscription and fees, confidential information, indemnification, governing law provisions, as well as miscellaneous and this section. Any provisions regarding any licenses that by their terms survive termination, will survive the expiration or termination of these Terms for any reason.
Neither party will be responsible for any delay in or failure of performance under these Terms due to causes beyond the reasonable control of the party, including, but not limited to, labor disputes, strikes, lockouts, war, terrorism, riot, or acts of God, embargoes, governmental restrictions, shortages of or inability to obtain energy, or other harm. The party whose performance is affected by such events shall promptly notify the other party giving details of the force majeure circumstances. The obligations of the party giving such notice shall be suspended during, but not longer than the continuance of the force majeure, and the time for performance of the affected obligation hereunder shall be extended by the time of the delay caused by force majeure. In the event of force majeure, each party has the duty to mitigate its damages.
The parties acknowledge that certain equipment, software and technical data which may be provided hereunder may be subject to export controls under the U.S. Export Administration Regulations and/or other export laws, restrictions and regulations of the United States or any other country. No party shall export any such equipment, software, technical data or any direct product thereof in violation of any such laws. Publisher is responsible for complying with all such laws and regulations, including but not limited to export, import and customs laws and regulations. Baro Labs shall provide reasonable assistance to Publisher and its affiliates to facilitate such compliance.
If any provision of these Terms shall be held to be invalid, illegal or unenforceable by any court of competent jurisdiction, then: (i) the validity, legality and enforceability of such provision as applied to any other particular facts or circumstances, and the other provisions of these Terms, shall not in any way be affected or impaired thereby; and (ii) such provision shall be enforced to the maximum extent possible so as to effect the intent of the parties. If any provision of these Terms shall for any reason be held to be excessively broad as to duration, geographical scope, activity or subject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent necessary to comply with applicable law.
No failure of either party to enforce any of its rights under these Terms will act as a waiver of such rights. The waiver by either party of a breach or default under any provision of these Terms shall not be effective unless in writing and shall not be construed as a waiver of any subsequent breach or default.
Neither party may assign these Terms, in whole or in part, by operation of law or otherwise, without the prior written consent of the other; provided, however that either party may assign its rights or delegate its duties under these Terms, in whole or in part, without the other's consent, in connection with a merger, reorganization or sale of all, or substantially all, of the assignor's assets, provided that the successor entity shall have sufficient resources and shall assume the obligation to fully perform these Terms.
These Terms shall be governed by and construed in accordance with the laws of the European Union without regard to any choice of law rule. Each party, to the extent permitted by applicable law, hereby irrevocably and unconditionally (i) agrees that any action or proceeding concerning these Terms or the Services will be brought exclusively in such courts.
These Terms, together with any applicable supplementary agreement or subscription agreement signed by both parties (if any), constitute the entire agreement between Baro Labs and Publisher with respect to the subject matter hereof.
All notices under these Terms will be in writing and will be delivered by personal service, confirmed fax, certified mail, or email. Notices to Publisher shall be sent to the email specified in Publisher’s Dashboard account. Notices to Baro Labs shall be sent to email@example.com. Notices will be effective on receipt.
Publisher understands and agrees that Baro Labs retains the right to suspend or cancel the Services for any or no reason and at its sole discretion at any time.
Baro Labs has the right to change, modify, add to or discontinue any aspect or feature of the Services at any time without any obligation to give Publisher notice of any changes. From time to time, Baro Labs may, but is under no obligation to, release upgrades, fixes or new versions of the Services.
Baro Labs reserves the right to monitor Publisher for compliance with these Terms.
Contact us if you have questions or comments regarding these Terms: firstname.lastname@example.org.
May 21, 2018