FREE TRIAL SERVICE AGREEMENT, TERMS OF SERVICE/USE, & DMCA NOTICE

THIS FREE TRIAL SERVICE AGREEMENT (“AGREEMENT”) GOVERNS YOUR ACQUISITION AND USE OF ANY FREE TRIAL SERVICE MADE AVAILABLE BY DOMAINSKATE, LLC.  BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR OTHERWISE USING THE FREE TRIAL SERVICE, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE FREE TRIAL SERVICE.

You may not access the Free Trial Service if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Free Trial Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. This Agreement was last updated on April 1, 2018.  It is effective between You and Us as of the date of You accepting this Agreement.

1.      Definitions.

1.1     “Free Trial Service” means the application(s) and/or technology provided under this Agreement to You that We have either: (i) not made generally available to Our customers, and has been designated by Us as beta, limited release, developer preview, development or test bed environments; or by descriptions of similar import, such as, but not limited to, “Free Trial.”

1.2    “Content” means information obtained by Us from Our content licensors or publicly available sources and which may be made available to You through the Free Trial Service, as may be more fully described in the Documentation.

1.3    “Documentation” means Our online user guides, documentation, and help and training materials, as updated from time to time, and which may be accessible via DomainSkate.com or login to the applicable infrastructure(s) from which the Free Trial Service otherwise operates. Your use of the Free Trial Service shall be subject to any notice and licensing information in the Documentation as may be applicable to the infrastructure from which it operates and/or the Free Trial Service itself.

1.4    “GA Service” means any successor version of the applicable Free Trial Service that We may make generally available.

1.5    “Marketplace” means an online directory, catalog or marketplace of applications that may interoperate with the Free Trial Service.

1.6    “Users” means individuals who are authorized by You to use the Free Trial Service, and have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to employees, consultants, contractors and agents of You or Your affiliateS.

1.7     “We,” “Us” or “Our” means DomainSkate, LLC.

1.8     “You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and affiliates of that company or entity.

2.      Use of Free Trial Service. We shall make the Free Trial Service and Content available to You subject to the terms of this Agreement and the applicable Documentation. You shall allow only Users to access the Free Trial Service, and only for the purpose(s) described by Us. The Free Trial Service is for evaluation purposes only and is not supported, and may be subject to additional terms as communicated to You. It is understood and agreed that We have no control over, and assume no responsibility for, the content, privacy policies, or practices of any third party web sites or services. You further acknowledge and agree that We shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such websites or services. It is understood and agreed that DomainSkate reserves the right, in its absolute discretion, to determine your eligibility for a Trial, and, subject to applicable laws, to withdraw or to modify a Trial at any time without prior notice and with no liability, to the greatest extent permitted under the law.
3.    Feedback & Aggregated Data.  If reasonably requested by Us, You agree to provide feedback to Us regarding the Free Trial Service, and DomainSkate may use such feedback as set forth in section 11 of this Agreement.  We may use the data generated in connection with Your use of the Free Trial Service (e.g., types of web applications utilized); provided, however, in the event We provide such data to third parties, it shall be anonymized and presented in the aggregate so that it cannot be linked specifically to You or any User.
4.    Confidentiality.  Information that is disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in connection with this Agreement that is identified as confidential or that would reasonably be understood to be confidential based on the nature of the information or the circumstances surrounding its disclosure, is Confidential Information of the Disclosing Party. Notwithstanding the foregoing, the Free Trial Service and all information provided or disclosed to You relating to the Free Trial Service is Our Confidential Information. The Receiving Party shall use the same degree of care to protect such Confidential Information that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
5.    Term and Termination. This Agreement shall commence upon Your acceptance and shall remain in effect with respect to a Free Trial Service until the earlier of either (1) the generally availability of the applicable Free Trial Service, or (2) Our ceasing to make the applicable Free Trial Service functionality available to You.
6.    Your Responsibilities. You are responsible for all activities that occur in User accounts and for Users’ compliance with this Agreement. You shall not: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit the Free Trial Service or Content nor make the Free Trial Service or Content available to any third party, other than as expressly permitted by this Agreement; (b) use the Free Trial Service to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (c) use the Free Trial Service to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (d) use the Free Trial Service to send or store any virus, worm, time bomb, Trojan horse or other harmful or malicious code, file, script, agent or programs; (e) interfere with or disrupt the integrity or performance of the Free Trial Service or the data contained therein; (f) attempt to gain unauthorized access to the Content, the Free Trial Service or its related systems or networks, or permit direct or indirect access to or use of the Free Trial Service or Content in a way that circumvents a contractual usage limit; (g) modify, copy or create derivative works based on the Free Trial Service; (h) modify, copy or create derivative works based on Content except as expressly permitted under this Agreement or the Documentation; (h) frame or mirror any part of the Free Trial Service or Content, other than framing on Your own intranets or otherwise for its own internal business purposes; (i) reverse engineer the Free Trial Service (to the extent such restriction is permitted by law); (j) access the Free Trial Service in order to build a competitive product or service; (k) access the Free Trial Service or Content in order to copy any ideas, features, functions or graphics of the Free Trial Service or Content; (l) send or store any data subject to the Health Insurance Portability and Accountability Act, Gramm-Leach-Bliley Act, or the Payment Card Industry Data Security Standards; or (m) otherwise use the Free Trial Service in manner that violates applicable laws. You shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all information and material submitted to the Free Trial Service by You or by Users or on their behalf, the means by which You acquired such information and material, and the use of such content and data; (ii) to the extent any Documentation imposes restrictions on submission of data to services which operate on the same infrastructure as the Free Trial Service, You shall abide by such restrictions in Your submission of data to the Free Trial Service; (iii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Free Trial Service and Content, and notify Us promptly of any such unauthorized access or use; and (iv) comply with the Documentation (if applicable) and all applicable local, state, federal and foreign laws, and written or electronically provided instructions from Us in using the Free Trial Service and Content; (v) comply with terms of service of Non-DomainSkate Applications with which You use the Free Trial Service or Content.
7.    No Warranty. THE FREE TRIAL SERVICE IS PROVIDED “AS-IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. WE DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. The Free Trial Service may contain bugs or errors. Any production use of the Free Trial Service is at Your sole risk. You acknowledge that We may discontinue making the Free Trial Service available to You at any time in Our sole discretion, and may never make the Free Trial Service generally available.
8.    No Damages. IN NO EVENT SHALL WE HAVE ANY LIABILITY HEREUNDER TO YOU FOR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR DAMAGES BASED ON LOST PROFITS, DATA OR USE, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.    Proprietary Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Free Trial Service, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein. We shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Free Trial Service and/or any GA Service any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Free Trial Service.
10.    Relationship to Other Agreements. You may be or become entitled to receive access to other of Our online services or a generally available version of the GA Service under a separate agreement with Us, including but not limited to the Master Subscription Agreement.  In such case, that separate agreement will govern Your access to Our other online services or generally available version of the GA Service, but will not govern Your access to the Free Trial Service, and this Agreement will govern Your access to the Free Trial Service but not Your access to Our other online services or any generally available versions of the GA Service. If during the Term of this Agreement We make a GA Service generally available, then following such general availability, the use of such GA Service shall thereafter be governed by the terms and conditions of the Master Subscription Agreement (and not this Agreement) unless We give You notice of the applicability of different terms and conditions for such GA Service. The use of a GA Service may require Your payment of subscription or other usage fees as applicable to Our customers generally for use of such GA Service.
11.    Communications. By registering for and using the Free Trial Service, You thereby consent to receiving information about DomainSkate and its products and services, via the contact information that You provide to DomainSkate. You may opt-out of any such communications at any time, by providing DomainSkate with notification of Your intent to opt-out in accordance with the instructions contained in such communications.
12.    General Provisions. You may not assign any of Your rights or obligations hereunder, whether by operation of law or otherwise, without Our prior written consent. This Agreement shall be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules. Each party hereby consents to the exclusive jurisdiction of the state and federal courts located in New York County (New York, NY) to adjudicate any dispute arising out of or relating to this Agreement. This Agreement constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted.

Please see our Privacy Policy for any/all information related to privacy, data security, age restrictions(s) and the like.

TERMS OF SERVICE

Online Brand Protection. The online brand protection services accessible through the Brand Protection portion of the website (the “Brand Protection Services” or “Services”) are available to Customer on a subscription basis for the purpose of identifying brand infringements on the Internet. Customer agrees to subscribe to each brand protection module selected by Customer.

Access to DomainSkate Services. Customer will use login and password information assigned by DomainSkate to access the Services. Only Customer’s authorized employees may access and use the Services. Customer shall be liable to DomainSkate for the unauthorized use, misuse or abuse of any user ID or password assigned to Customer.

Pricing. Upon subscribing for the Services, Customer agrees to pay DomainSkate the monthly or annual subscription fees that the Customer chooses at www.domainskate.com during the “sign-up” process and as described in DomainSkate’s standard price list (the “Fees”). You agree and understand that DomainSkate may, at any time, without liability, modify the Services and its pricing structure related thereto, and the subject Terms and Conditions. Pricing for the Services depends upon the number of brands covered under Customer’s account. A ‘brand’ refers to a single brand, product, search term, phrase, logo, slogan, keyword, or executive name owned or otherwise held by Customer. In the event you desire to increase the number of brands under your subscription for the Services, you agree to pay DomainSkate Fees associated with such increase.

Payment. Customer agrees to pay for the Services by means of any payment method acceptable to DomainSkate. DomainSkate shall invoice Customer in the total annual amount of the Fees upon commencement of the Services. Payment of invoice is due within 30 days of date of invoice. All Services are non-refundable.

Term. The term of each subscription of Brand Protection Services is one year. Each subscription automatically renews for additional terms of one year each unless either party provides the other party with written notice of termination at least thirty (30) days prior to the end of the then current term of its intent not to renew any of the Services.

Copyright/Trademark/Service Mark. The information available through the Brand Protection Services is the exclusive property of DomainSkate and is protected by copyright, trademark, service mark, other intellectual property laws and associated common law principles. This protection extends to all areas of DomainSkate, including both Customer and non-Customer areas. Information received through DomainSkate may be displayed, reformatted and printed for your use related to the practice of law, protection of your Company’s intellectual property or your personal, non-commercial use only. Furthermore, Customer agrees that it shall not, directly or indirectly, (i) sell, lease, assign, sublicense or otherwise transfer, (ii) duplicate, reproduce or copy, (iii) disclose, divulge or otherwise make available to any third party, (iv) use except as authorized by this Agreement, or (v) decompile, disassemble or otherwise analyze for reverse engineering purposes, the Brand Protection Services, including all trade secrets and confidential information therein. Customer agrees that it shall not permit any third party to have access to the Brand Protection Services or to any trade secrets and/or confidential information therein.

Disclaimer of Warranties. DomainSkate assumes no liability for any damages suffered by you, including, but not limited to, mistakes, omissions, loss of data, delays in operation or transmission, non-deliveries, deletion of files or e-mail, errors, defects, computer viruses, or service interruptions of any kind, or any failure of performance, communications failure, destruction or unauthorized access to DomainSkate’s records, program, information or services. DomainSkate assumes no liability for the quality, accuracy, or validity of the data/information gathered by this service. Use of information gathered through DomainSkate’s services is at your risk. No oral advice or written information given by DomainSkate, its employees, agents, or third-party providers shall create a warranty or license; nor shall you be entitled to rely on such information or advice. DOMAINSKATE MAKES NO EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS OF ANY KIND (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE OR NON-INFRINGEMENT, OR THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) WITH REGARD TO ITS SERVICE OR SERVICES ON THE INTERNET GENERALLY. DOMAINSKATE SHALL NOT BE LIABLE FOR ANY COST OR DAMAGE ARISING, EITHER DIRECTLY OR INDIRECTLY, FROM YOUR RELIANCE OR USE OF THE SERVICE. YOU ARE ENTIRELY RESPONSIBLE FOR ALL CONTENT THAT YOU UPLOAD, E-MAIL OR OTHERWISE TRANSMIT VIA THE SERVICES. DOMAINSKATE DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. DOMAINSKATE DOES NOT PROVIDE ANY LEGAL OPINIONS OR LEGAL ADVICE WITH RESPECT TO THE RESULTS OF THE SEARCHES PERFORMED BY DOMAINSKATE. DOMAINSKATE IS NOT A LAW FIRM AND DOES NOT PROVIDE LEGAL SERVICES OR LEGAL OPINIONS. ANY LEGAL QUESTIONS WITH RESPECT TO INTELLECTUAL PROPERTY LAW SHOULD BE DIRECTED TO LEGAL COUNSEL. THE AGGREGATE LIABILITY OF DOMAINSKATE ARISING OUT OF A CLAIM FOR LOSS RELATED TO THE SERVICES AVAILABLE THROUGH DOMAINSKATE SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE SPECIFIC SERVICE AFFECTED BY THE CLAIM. IN NO EVENT SHALL DOMAINSKATE BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES ARISING OUT OF DOMAINSKATE’S SERVICES, INCLUDING LOST PROFITS, EVEN IF DOMAINSKATE HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU

Limitations of Use. You are using the Brand Protection Services on a non transferable, limited, and non-exclusive basis. You agree to conform to applicable local, state and federal laws and regulations. You shall not use or permit the use of the Service in any way that compromises the integrity thereof or infringes any proprietary interests of DomainSkate. Customer may not publish, broadcast or otherwise redistribute the reports generated through DomainSkate. Any and all information offered herein by DomainSkate is the sole and exclusive property of DomainSkate except to the extent that the information contained therein is in the public domain or is licensed to DomainSkate by a third party. All right, title, and interest (including all copyrights and other intellectual property rights) in the services provided by DomainSkate belong to DomainSkate.

Confidentiality. Customer agrees that, during the Term and thereafter, any information disclosed by DomainSkate to Customer of a confidential or proprietary nature (“Confidential Information”): (i) will not be disclosed to any third person, unless required by law; (ii) will be treated with a high degree of care in order to preserve its confidentiality; (iii) will not be used except in the performance of the Services hereunder; and (iv) will remain the property of DomainSkate. These provisions do not apply to information that: (i) is publicly known through no wrongful act of the Customer; (ii) is available to the Customer on a non-confidential basis from a third party; (iii) is independently developed; or (iv) was in the Customer’s possession prior to it being disclosed by DomainSkate. Customer further agrees that DomainSkate prices and the related business terms of this Agreement and format of any reports or documents generated hereunder are deemed to be DomainSkate’s Confidential Information.

Indemnification and Third Party Rights. Customer agrees to indemnify, defend and hold harmless DomainSkate, its owners, officers, directors, employees, and agents from and against all third-party losses, expenses, damages and costs, including reasonable attorneys’ fees, resulting from (i) any violation of this Agreement, (ii) any shutdown or cease and desist request communicated by Customer to DomainSkate, or (iii) any unlawful or wrongful activity related to Customer’s account by Customer or any other person accessing the service using Customer’s account. This section is for the benefit of DomainSkate and its officers, directors, employees, and agents. DomainSkate shall promptly notify customer of any such claim; and Customer shall control the defense of such claim; provide however, that Customer shall not have any right, without the DomainSkate’s written consent, to settle any such claim unless such settlement includes a full release of DomainSkate. DomainSkate will not be liable in any manner (except for DomainSkate’s gross negligence) for the shutdown of fraudulent or infringing websites.

Miscellaneous. This Agreement shall be governed by and construed in accordance with the laws of the State of New York. This Agreement evidences the entire agreement of the parties, with respect to the subject matter hereof, and supersedes and cancels all prior discussions, agreements and understandings between the parties, written, oral or implied. All notices to DomainSkate shall be made in writing and shall be sent by mail or fax to: DomainSkate, LLC 175 Varick Street, New York NY 10014. DomainSkate may modify this Agreement from time to time upon written or electronic notice to Customer. The failure of DomainSkate to require Customer’s performance of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by DomainSkate of a breach of any provision hereof be taken or held to be a waiver of the provision itself. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole. DomainSkate will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of DomainSkate as reflected in the original provision. This Agreement does not affect or otherwise modify any other Agreements between Customer and DomainSkate pertaining to services other than the Services referenced herein.

Digital Millenium Copyright Act (DMCA) Agent; Digital Millennium Copyright Act

It is the policy of DomainSkate LLC to respond to notices of alleged copyright infringement, in compliance with the Digital Millennium Copyright Act and other applicable laws. This Exhibit A describes how to serve a Notice of Infringing Material and what to do if any material you have placed on any DomainSkate sites, including disinfo.com, becomes the subject of such a notice.

Before serving either a Notice of Infringing Material or a Counter-Notification, you may wish to contact a lawyer to better understand your rights and obligations under the DMCA and other laws. The following notice requirements are intended to comply with DomainSkate’s rights and obligations under the DMCA and do not constitute legal advice.

Our response to these notices may include removing or disabling access to material claimed to be the subject of infringing activity and/or terminating subscribers. If we remove or disable subscriber access in response to such a notice, we will make a good-faith attempt to contact the owner of the affected site, or the uploader of the affected material or post, so that they may make a counter notification. We may also document notices of alleged infringement on which we act. Your complaint will also be a matter of record. A copy of the legal notice may be sent to one or more third parties who may then make it available to the public.

Please be advised that you may be liable for damages if you materially misrepresent that a post, product or activity is infringing your copyrights.

By using some of our services, you license other customers to copy works you have uploaded into specific sections of those services or sites. Please examine the posted agreements and terms of service in any situations where you and the alleged infringer are each a customer or subscriber to the same service, since you may have granted a license for some or all uses of your works at that DomainSkate site.

If you are a copyright owner or an agent thereof and you believe that any content or link on one of DomainSkate’s sites infringes upon your copyrights, you may submit a notice pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent the following information in writing:

(1) Your physical or electronic signature;

(2) Identification of the copyrighted work or works claimed to have been infringed;

(3) Identification of the material that is claimed to be infringing that copyrighted work, and URLs or similar information sufficient to permit us to locate that material on our websites and services;

(4) Information to permit DomainSkate’s agent to contact you: your address, telephone number and email address;

(5) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and

(6) A statement that the information in the notification is accurate, and under penalty of perjury, that you are the owner, or are authorized to act on behalf of the owner of the copyright that is allegedly infringed.

Designated DMCA Agent

DomainSkate’s designated DMCA Copyright Agent to receive Notices of Infringing Material is:

David Mitnick

DomainSkate LLC

175 Varick Street

New York NY 10014

info@domainskate.com

Phone: (212) 812-1437

Only DMCA notices should go to our DMCA Copyright Agent. You acknowledge that if you fail to comply with all of the requirements listed, your DMCA notice may not be valid.

Please see our Privacy Policy for any/all information related to privacy, data security, age restrictions(s) and the like.