ORACLE TEST AND EVALUATION TERMS OF SERVICE
Thanks for choosing to test and evaluate the Moat Services. The Moat Services are provided by Oracle America, Inc. ("Oracle") located at 500 Oracle Parkway, Redwood Shores, CA 94065. By using the Moat Services, you are agreeing to the following Terms of Service (these "Terms"). These Terms confirm and clarify respective rights and obligations between Oracle and you in connection with your access to and use of the Moat Services.
You and Oracle agree as follows:
ORACLE IS WILLING TO AUTHORIZE YOUR ACCESS TO THE MOAT SERVICES ONLY UPON THE CONDITION THAT YOU ACCEPT THAT THESE TERMS GOVERN YOUR USE OF THE MOAT SERVICES. BY SELECTING THE "ACCEPT" BUTTON OR BOX (OR THE EQUIVALENT) OR INSTALLING, ACCESSING OR USING THE MOAT SERVICES, YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS AS AN INDIVIDUAL OR AS AN AUTHORIZED REPRESENTATIVE OF YOUR COMPANY OR ORGANIZATION (IF BEING ACQUIRED FOR USE BY AN ENTITY), AS APPLICABLE, AND AGREE TO COMPLY WITH THESE TERMS. IF YOU ARE NOT WILLING TO BE BOUND BY THESE TERMS, DO NOT SELECT THE "ACCEPT" BUTTON OR BOX (OR THE EQUIVALENT) AND DO NOT INSTALL, ACCESS OR USE THE MOAT SERVICES. IF THE MOAT SERVICES ARE BEING ACQUIRED FOR USE BY AN ENTITY, (A) "YOU," AS SUCH TERM IS USED HEREIN, SHALL REFER TO SUCH ENTITY AND (B) SUCH ENTITY SHALL BE BOUND TO THESE TERMS.
1. USE OF THE MOAT SERVICES.
1.1 Oracle will make the Moat Services available to you pursuant to these Terms. If necessary for the provision of the Moat Services to you, Oracle will provide you any required java script code, pixel tags, or other Oracle technology ("Technology") for the purposes of capturing your Information. Any Technology provided to you will also be deemed part of the "Moat Services." Except as otherwise stated in these Terms, you have the non-exclusive, worldwide, limited right to use the Moat Services for the period set forth in Section 6, unless earlier terminated, solely for your internal evaluation of the Moat Services. You may allow your Users to use the Moat Services for this purpose, and you are responsible for their compliance with these Terms.
1.2 You may not, and may not cause or permit others to: (a) perform or disclose any benchmarking, availability or performance testing of the Moat Services; or (b) perform or disclose network discovery, port and service identification, vulnerability scanning, password cracking, remote access or penetration testing of the Moat Services (the "Acceptable Use Policy"). In addition to other rights that Oracle has in these Terms, Oracle may remove or disable access to material that violates the Acceptable Use Policy.
1.3 If Technology is provided to you by Oracle, it is your responsibility to ensure that such Technology is properly implemented in accordance with any instructions provided to you by Oracle. Prior to fully deploying the Technology, you are responsible for testing the Technology in a manner sufficient to ensure that the Technology will not interfere with the proper functioning of your systems or webpages, including proper ad loading. Oracle assumes no responsibility regarding the implementation of the Technology. Oracle may attempt to assist you with Technology implementation issues, but cannot guarantee issues will be resolved. If the Moat Services cannot be provided by Oracle due to incorrect Technology implementation Oracle shall have no liability or obligations hereunder.
There are no fees due by either party under these Terms.
3. OWNERSHIP RIGHTS AND RESTRICTIONS.
3.1 You or your licensors retain all ownership and intellectual property rights in and to your Information. Oracle or its licensors retain all ownership and intellectual property rights in and to the Moat Services, derivative works thereof (including Reports (as defined below)), and anything developed or delivered by or on behalf of Oracle under these Terms.
3.2 You may have access to Third Party Content through use of the Moat Services. The provider of any Third Party Content shall retain all ownership and intellectual property rights in and to such Third Party Content. Further, the Moat Services may enable Oracle to receive your Information from third parties' websites or platforms ("Third Party Services"). Oracle does not control and is not responsible for Third Party Content or Third Party Services. Oracle may cease providing access to Third Party Content or may cease receiving your Information from Third Party Services at any time without any liability to you. If Oracle collects your Information from Third Party Services, you are solely responsible for ensuring that such collection is authorized by the terms of access and use for such Third Party Services.
3.4 You may not, and may not cause or permit others to: (a) modify, make derivative works of, disassemble, decompile, reverse engineer, reproduce (other than reports which are (i) produced by you through the normal use of the functionality of the Moat Services or (ii) produced for you by Oracle through the normal use of the functionality of the Moat Services and delivered by Oracle to you (collectively, "Reports")), republish, download (other than Reports), or copy (other than Reports) any part of the Moat Services (including data structures or similar materials produced by programs); (b) access or use the Moat Services to build or support, directly or indirectly, products or services competitive to Oracle or its affiliates; or (c) license, sell, transfer, assign, distribute, outsource, permit timesharing or service bureau use of, commercially exploit, or make available the Moat Services to any third party except as permitted by these Terms; (d) use the Moat Services to collect personally identifiable information other than IP addresses; (e) associate or combine any Information collected hereunder with any personally identifiable information from any source. You will not derive, or attempt to derive, either directly or indirectly, the identity of an individual through use of the Moat Services or Technology, and will promptly notify Oracle if you discover that you have done so.
4.1 By virtue of these Terms, the parties may disclose to each other information that is confidential ("Confidential Information"). Confidential Information shall be limited to these Terms, the Moat Services, Reports, your Information, and all information clearly identified as confidential at the time of disclosure.
4.2 A party's Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party's lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party.
4.3 Each party agrees not to disclose the other party's Confidential Information to any third party other than as set forth in the following sentence for a period of five years from the date of the disclosing party's disclosure of the Confidential Information to the receiving party. Each party may disclose Confidential Information only to those employees, agents or subcontractors who are required to protect it against unauthorized disclosure in a manner no less protective than required under these Terms, and each party may disclose the other party's Confidential Information in any legal proceeding or to a governmental entity as required by law.
4.4 You are responsible for any security vulnerabilities, and the consequences of such vulnerabilities, arising from your Information or from your use of the Moat Services in a manner that is inconsistent with these Terms. Oracle and its affiliates may perform certain aspects of the Moat Services (e.g., administration, maintenance, support, disaster recovery and data processing) via contractors and facilities located worldwide. Your Information may not include any health, payment card or similarly sensitive data that imposes specific data security or data protection obligations on the processing of such data.
5. WARRANTIES, DISCLAIMERS AND LIMITATION OF LIABILITY.
5.1 THE MOAT SERVICES, THIRD PARTY CONTENT (IF ANY) AND THIRD PARTY SERVICES (IF ANY) ARE PROVIDED AND MADE ACCESSIBLE "AS-IS" AND "AS AVAILABLE" WITHOUT ANY WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING FOR MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PURPOSE. ORACLE IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE MOAT SERVICES THAT ARISE FROM YOUR INFORMATION. ORACLE IS NOT RESPONSIBLE FOR AND DISCLAIMS ALL LIABILITIES ARISING FROM OR RELATED TO THIRD PARTY CONTENT OR THIRD PARTY SERVICES.
5.2 IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, SALES, DATA, DATA USE, GOODWILL, OR REPUTATION. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF ORACLE AND ITS AFFILIATES ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED ONE THOUSAND DOLLARS ($1,000.00).
6. TERM AND TERMINATION.
You may use the Moat Services for no more than six (6) months from the date you first access the Moat Services. If you wish to continue to use the Moat Services following the end of such six (6) month period, you must enter into a separate written agreement with Oracle, signed by both you and Oracle. Oracle has the right to terminate your access to, and you have the right to stop using, the Moat Services at any time. Provisions that survive termination or expiration of these Terms are those relating to limitation of liability and others which by their nature are intended to survive.
7. COMPLIANCE WITH LAWS.
8.1 Oracle may (i) compile statistical and other information related to the performance, operation and use of the Moat Services, and (ii) use data from the Moat Services in aggregated form for security and operations management, to create statistical analyses, and for research and development purposes (clauses i and ii are collectively referred to as “Service Analyses”). Oracle may make Service Analyses publicly available; however, Service Analyses will not incorporate your Information, Personal Data or Confidential Information in a form that could serve to identify you or any individual. Oracle retains all intellectual property rights in Service Analyses. Oracle may use Service Analyses for its lawful business purposes.
8.2. These Terms are governed by the substantive and procedural laws of the State of California and each party agrees to submit to the exclusive jurisdiction of, and venue in, the courts in San Francisco or Santa Clara counties in California in any dispute arising out of or relating to these Terms. The Uniform Computer Information Transactions Act does not apply to these Terms.
8.3 Any notice required under these Terms shall be provided to the other party in writing. If you have a legal dispute with Oracle or if you become subject to insolvency or other similar legal proceedings, you will promptly send written notice to: Oracle America, Inc., 500 Oracle Parkway, Redwood Shores, CA 94065, Attention: General Counsel, Legal Department. Oracle may give notices to you by electronic mail to your e-mail address on record in Oracle's account information or by written communication sent by first class mail or pre-paid post to your address on record in Oracle's account information.
8.4 The Technology uses the OMID Client Library. The OMID Client Library allows the Technology to communicate with the IAB Open Measurement SDK available at https://iabtechlab.com/standards/open-measurement-sdk/. The OMID Client Library is a separately-licensed third-party open-source component of the Technology. Your use of the OMID Client Library is subject to the Apache License, Version 2.0, which can be found at http://www.apache.org/licenses/LICENSE-2.0.
8.5 Oracle is an independent contractor, and no partnership, joint venture, or agency relationship exists between the parties. Oracle's business partners and other third parties, including any third parties with whom the Moat Services have integrations or that are retained by you, are independent of Oracle and are not Oracle's agents. Oracle is not liable for, bound by, or responsible for any problems with the Moat Services or your Information arising due to any acts of any such business partner or third party. Nothing in these Terms limits Oracle's right to do business with any other third parties. These Terms are the entire agreement between you and Oracle related to the Moat Services described herein and supersede any prior or contemporaneous agreements. If Oracle takes no action for your failure to comply with any part of these Terms, it does not mean that Oracle is foregoing or giving up any rights described herein. If any part of these Terms are unenforceable, that will not affect the enforceability of any other part of these Terms. You may not assign the Terms or give or transfer the Moat Services, or any interest in the Moat Services, to another individual or entity. Oracle may modify or update the Moat Services or these Terms at any time. You should review these Terms regularly and it is your responsibility to do so. Oracle will post the "as of date" for these Terms on the bottom of this page. Any changes to these Terms will not apply retroactively and will become effective for your use of the Moat Services ten (10) days after they are posted on this page. Any (a) changes made to these Terms which are required by law or (b) changes to the Moat Services will become effective immediately. If you do not agree to any change in the Moat Services or these Terms, you will stop using the Moat Services. Your continued use of the Moat Services following changes to the Moat Services or these Terms represents your acceptance of those changes.
9.1 "Information" means all data, content and material of yours, in any format, collected by the Technology and provided to Oracle by you, the Technology or Third Party Services as part of your use of the Moat Services.
9.2 "Moat Services" means the suite of technology and services owned by Oracle, which are provisioned to you for testing and evaluation purposes under these Terms, known as Moat Pro, Moat Plus or Moat Analytics, or all, as applicable.
9.3 "Third Party Content" means all data, content and material, in any format, that are obtained or derived from third party sources outside of Oracle or its affiliates that you may access through, within, or in conjunction with your use of, the Moat Services. Third Party Content includes third-party sourced materials accessed or obtained by your use of the Moat Services or any Oracle-provided tools.
9.4 "Users" means those employees, contractors, and end users, as applicable, authorized by you or on your behalf to use the Moat Services in accordance with these Terms.
Last Updated: September 4, 2019