Gigaom Research Terms and Conditions

These Terms and Conditions (the “T&C”) shall apply to Corporate User’s use of the Gigaom analyst network website (the “Gigaom Research Site”) and certain services accessible through or on the Gigaom Research Site (collectively, the “Services”).

1. Services.

(a) Gigaom Research Site.

Subject to this T&C and during the Term (as defined herein), Corporate User shall be granted a license to access and use the Service and the Gigaom Research Site as set forth herein (the “Subscription Services”).

(b) Analyst Services Terms.

(i) Corporate User acknowledges and agrees that: (A) Analyst(s) and the Analyst Services are subject to the availability of such Analyst(s) requested, (B) any Services Requests for Analyst Services shall not be deemed binding on Gigaom or any Analyst unless and until authorized in writing by an authorized representative of Gigaom

(ii) In the event that Gigaom accepts a Services Request for Analyst Services, Gigaom shall use commercially reasonable efforts to arrange the Analyst Services.

2. Intellectual Property Rights.

The Gigaom Research Site is proprietary to Gigaom and is protected by intellectual property laws and international intellectual property treaties. The entire contents of the Gigaom Research Site (the “Content”) are copyrighted as a collective work under the laws of United States and other copyright laws. Gigaom holds the copyright in the collective work. The collective work may include works that are the property of other third parties, which are also protected by copyright and other intellectual property laws. Corporate User may display and, subject to any expressly stated restrictions or limitations relating to specific material, download portions of the Content from the different areas of the Gigaom Research Site solely for Corporate User’s own non-commercial use, unless otherwise permitted. Any redistribution, retransmission or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner. Corporate User agrees not to change or delete any proprietary notices from materials downloaded from the Gigaom Research Site. Corporate User may not use any Gigaom logo or any other proprietary graphic or trademark without Gigaom’s express written permission. As between the parties, title, ownership rights, and intellectual property rights in the Services, and any copies or portions thereof, shall remain in Gigaom and/or its content providers. Third-party trademarks, service marks and logos contained in the Gigaom Research Site are owned and licensed by their respective owners. Gigaom reserves any rights not expressly granted herein. All Gigaom content that is made available to view and/or download in connection with the Gigaom Research Site is owned by and is the copyrighted work of Gigaom and/or its suppliers and is licensed, not sold. Corporate User may not lend, lease, rent or sublicense the Gigaom Research Site. Any and all custom work is proprietary to Gigaom and is protected by intellectual property laws and international intellectual property treaties. Any redistribution, retransmission or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner.

3. Grant of Limited License.

(a) Limited License to Gigaom Research Site. Corporate User’s access to the Gigaom Research Site is licensed and not sold. During the Term and subject to Corporate User’s compliance with this T&C, Gigaom agrees to provide Corporate User with an online account (the “Corporate Research Account”) and a personal, revocable, non-transferable and non-exclusive account enabling Corporate User to access and use the Service and the Gigaom Research Site, by the number of Concurrent Users as defined and specified in Exhibit A, subject to the restrictions set forth herein.

4. Intentionally Omitted.

5. Fees; Payment Terms.

(a) Fees. Corporate User agrees to pay Gigaom (i) the fees for the use of the Subscription Services as set forth on the Order Form, and, as applicable, (ii) the fees for any Additional Services as set forth on the respective Services Requests ((i) and (ii) collectively, the “Fees”). Unless otherwise stated, all Fees are stated in U.S. Dollars.

(b) Payment Terms. Except as set forth on the applicable exhibit(s) attached hereto, all Fees shall be paid in advance and shall be non-refundable. All Fees due and payable shall be invoiced to Corporate User, and all payments shall be due within 30 days of receipt of invoice. There will be no refunds or credits for partial months of service, upgrade/downgrade refunds, or refunds for months unused.

6. Term.

(a) Term. The initial term of this T&C shall commence on the Effective Date and shall continue for one (1) year, unless sooner terminated pursuant to Section 6(b) below (the “Initial Term”).

(b) Termination. This T&C may be terminated by either party: (i) upon thirty (30) days after written notice has been given of a material breach of this T&C by the other party which remains uncured; (ii) in the event a Party makes a general assignment for the benefit of creditors, files a voluntary petition in bankruptcy or for reorganization or arrangement under the bankruptcy laws, if a petition in bankruptcy is filed against such Party, or if a receiver or trustee is appointed for all or any part of the property or assets of such Party; or (iii) by a written agreement executed by the Parties.

(c) Effect of Termination. Notwithstanding anything to the contrary in this T&C, any termination of this T&C shall not relieve either party hereto of any of its obligations or liabilities accrued hereunder prior to such termination. Upon termination or expiration of this T&C, all licenses granted to Corporate User hereunder shall terminate immediately, and Corporate User shall cease all use of the Services. Termination of this T&C shall be without prejudice to obligations of the parties existing at the time of termination, including but not limited to payment in full of fees and other monies then due, nor shall it prejudice those obligations and limitations which by their nature and meaning survive termination. Notwithstanding anything contrary contained herein, upon the expiration or termination of this T&C, Gigaom shall be entitled to archive and use any information on any Concurrent User pursuant to Gigaom privacy policy currently in effect. The definitions of this T&C and the respective rights and obligations of the parties under Sections 2(Intellectual Property Rights), 6(c)(Effect of Termination), 7(Disclaimers), 8(Indemnification), 9(Liability Limitation), 10(Publicity), and 11(Miscellaneous) shall survive any termination or expiration of this T&C.

7. Disclaimers.

THE GIGAOM RESEARCH SITE AND SERVICES (INCLUDING ANY SUBSCRIPTION SERVICES AND ADDITIONAL SERVICES) ARE PROVIDED BY GIGAOM ON AN “AS IS” BASIS AND GIGAOM MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE GIGAOM RESEARCH SITE, ANY SERVICES (INCLUDING ANY SUBSCRIPTION SERVICES AND ADDITIONAL SERVICES) OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED ON THE GIGAOM RESEARCH SITE. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, GIGAOM DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND WARRANTIES THAT ACCESS TO OR USE OF THE SERVICE AND/OR THE GIGAOM RESEARCH SITE WILL BE UNINTERRUPTED OR ERROR-FREE. THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE FACE OF THIS AGREEMENT. GIGAOM CANNOT AND DOES NOT WARRANT AGAINST HUMAN AND MACHINE ERRORS, OMISSIONS, DELAYS, INTERRUPTIONS OR LOSSES, INCLUDING LOSS OF DATA. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.

8. Indemnification.

(a) CORPORATE USER AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS GIGAOM, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND SUPPLIERS FROM AND AGAINST ALL LOSSES, EXPENSES, DAMAGES AND COSTS, INCLUDING REASONABLE ATTORNEY’S FEES, RESULTING FROM ANY VIOLATION OF THIS AGREEMENT OR ANY USER SUBMISSION POSTED OR SUBMITTED BY CORPORATE USER AND/OR ITS CONCURRENT USERS (INCLUDING INFRINGEMENT OF THIRD PARTIES’ WORLDWIDE INTELLECTUAL PROPERTY RIGHTS OR NEGLIGENT OR WRONGFUL CONDUCT).

(b) GIGAOM AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS CORPORATE USER, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND SUPPLIERS FROM AND AGAINST ALL LOSSES, EXPENSES, DAMAGES, AND COSTS, INCLUDING REASONABLE ATTORNEY’S FEES, RESULTING FROM (i) ANY VIOLATION OF ANY THIRD PARTY’S WORLDWIDE INTELLECTUAL PROPERTY RIGHTS OR (ii) GIGAOM’S GROSS NEGLIGENCE OR WRONGFUL CONDUCT.

9. Liability Limitation.

NEITHER PARTY WILL BE LIABLE UNDER ANY THEORY OF LAW, FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION OR DATA OR COSTS OF REPLACEMENT GOODS, ARISING OUT OF THE USE OR INABILITY TO USE THE GIGAOM RESEARCH SITE, ANY SERVICES (INCLUDING ANY SUBSCRIPTION SERVICES AND ADDITIONAL SERVICES), OR RESULTING FROM USE OF OR RELIANCE ON THE INFORMATION PRESENTED, EVEN IF GIGAOM MAY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The Gigaom Research Site is controlled and offered by Gigaom from its facilities in the United States of America. Gigaom makes no representations that the Gigaom Research Site is appropriate or available for use in other locations. Those who access or use the Gigaom Research Site from other jurisdictions do so at their own volition and are responsible for compliance with local law.

10. Publicity.

Corporate User’s name or logo including, without limitation, in a press release, shall be subject to Corporate User’s prior approval in writing.

11. Miscellaneous.

(a) Relationship of Parties. Gigaom and Corporate User are independent contractors, and nothing in this T&C will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. Neither party is an agent or representative of the other or is authorized to make any warranties or assume or create any other obligations on behalf of the other.

(b) Governing Law. This T&C, and the rights of the parties hereto, shall be governed by and construed in accordance with the laws of the State of California as such laws apply to agreements among California residents made and to be performed entirely within the State of California.

(c) Entire Agreement; Amendment, Modifications and Waivers. This T&C, along with Gigaom’s Terms of Service, Privacy Policy, and Copyright or Intellectual Property Infringement Notification Policy that exist on the date hereof, are the complete and exclusive statements of the mutual understanding of the parties and supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter hereof. This T&C may not be modified or amended except in writing signed by a duly authorized representative of each party. No waivers of or exceptions to any term, condition or provision of this T&C, in any one or more instances, shall be deemed to be, or construed as, a further or continuing waiver of any such term, condition or provision. In the event of any conflict between this T&C and the T&C of Service, Privacy Policy, and Copyright or Intellectual Property Infringement Notification Policy, this T&C shall control.

(d) Severability. If any provision of this T&C is held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of this T&C shall not be affected thereby.

(e) Assignment. Corporate User may assign and transfer this agreement or all or any part of its rights hereunder to any person, firm or corporation without limitation, and this agreement shall be binding upon and inure to the benefit of the parties hereto and their successors, representatives and assigns forever.

(f) Successors and Assigns. These T&C shall inure to the benefit of and be binding upon the parties hereto and its respective heirs, successors, assigns, administrators, executors and other legal representatives.

(g) Notice. All notices, requests and other communications under this T&C must be in writing, and must be mailed by registered or certified mail, postage prepaid and return receipt requested, or delivered by hand to the party to whom such notice is required or permitted to be given. If mailed, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered by hand, any such notice will be considered to have been given when received by the Party to whom notice is given, as evidenced by written and dated receipt of the receiving Party. The mailing address for notice to either Party will be the address shown on the Order Form and, in the case of Corporate User, a copy (which shall not constitute notice) shall be addressed to “General Counsel” at the same address. Either Party may change its mailing address by notice as provided by this Section.

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