Moat Test and Evaluation Terms of Service

Thanks for choosing to test and evaluate the Moat Services. The Moat Services are provided by Moat, Inc. ("Moat") located at 63 Madison Ave., 15th Floor, New York, NY 10016.  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 Moat and you in connection with your access to and use of the Moat Services.

You and Moat agree as follows:

MOAT IS WILLING TO AUTHORIZE YOUR ACCESS TO THE SERVICES ONLY UPON THE CONDITION THAT YOU ACCEPT THAT THESE TERMS GOVERN YOUR USE OF THE SERVICES.  BY SELECTING THE "ACCEPT" BUTTON OR BOX (OR THE EQUIVALENT) OR INSTALLING, ACCESSING OR USING THE 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 SERVICES.  IF THE 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 Services

1.1 Moat will make the Services available to you pursuant to these Terms. If necessary for the provision of the Services to you, Moat will provide you any required java script code, pixel tags, or other Moat technology ("Technology") for the purposes of capturing your Information.  Any Technology provided to you will also be deemed part of the "Services."  Except as otherwise stated in these Terms, you have the non-exclusive, worldwide, limited right to use the Services for the period of time set forth in Section 6, unless earlier terminated, solely for your internal evaluation of the Services.  You may allow your Users to use the 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 Services; or (b) perform or disclose network discovery, port and service identification, vulnerability scanning, password cracking, remote access or penetration testing of the Services (the "Acceptable Use Policy"). In addition to other rights that Moat has in these Terms, Moat may remove or disable access to material that violates the Acceptable Use Policy.

1.3 If Technology is provided to you by Moat, it is your responsibility to ensure that such Technology is properly implemented in accordance with any instructions provided to you by Moat. 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.  Moat assumes no responsibility regarding the implementation of the Technology. Moat may attempt to assist you with Technology implementation issues, but cannot guarantee issues will be resolved.  If the Services cannot be provided by Moat due to incorrect Technology implementation Moat shall have no liability or obligations hereunder.

2. Fees

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.  Moat or its licensors retain all ownership and intellectual property rights in and to the Services, derivative works thereof (including Reports (as defined below)), and anything developed or delivered by or on behalf of Moat under these Terms.   

3.2 You may have access to Third Party Content through use of the 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 Services may enable Moat to receive your Information from third parties’ websites or platforms ("Third Party Services").  Moat does not control and is not responsible for Third Party Content or Third Party Services.  Moat 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 Moat 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. 

3.3 You grant Moat the right to host, index, use, process, display and transmit your Information to provide the Services pursuant to and in accordance with these Terms.  Without limiting the foregoing, you hereby agree that, during the period of time set forth in Section 6 in which you may use the Services and at any time thereafter, Moat may include, on Moat.com or Moat Pro, your site and any ads that you distribute, regardless of whether such sites or ads contain Technology and regardless of the existence of terms of use or similar terms (or anything contrary therein) or any robots.txt or other similar technology in respect of access to publicly available portions of your site or ads.  You have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of your Information, and for obtaining all rights related to your Information required by Moat to perform the 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 produced by you through the normal use of the functionality of the Services ("Reports")), republish, download (other than Reports), or copy (other than Reports) any part of the Services (including data structures or similar materials produced by programs); (b) access or use the Services to build or support, directly or indirectly, products or services competitive to Moat or its affiliates; or (c) license, sell, transfer, assign, distribute, outsource, permit timesharing or service bureau use of, commercially exploit, or make available the Services to any third party except as permitted by these Terms; (d) use the Services to collect personally identifiable information; (e) associate or combine any Information collected hereunder with any personally identifiable information from any source.

4. Nondisclosure

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 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 Services in a manner that is inconsistent with these Terms.  Moat and its affiliates may perform certain aspects of the Services (e.g., administration, maintenance, support, disaster recovery and data processing) from locations and/or through use of subcontractors, 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 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 PARTICULAR PURPOSE. MOAT IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE SERVICES THAT ARISE FROM YOUR INFORMATION.  MOAT 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 MOAT 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 Services for no more than six (6) months from the date you first access the Services. If you wish to continue to use the Services following the end of such six (6) month period, you must enter into a separate written agreement with Moat, signed by both you and Moat.  Moat has the right to terminate your access to, and you have the right to stop using, the 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

Moat will comply with all laws, rules, regulations, regulatory guidelines and self-regulatory guidelines (collectively, "Rules") directly applicable to Moat in its role of providing the Services to you. You will comply with all Rules applicable to your use of the Services and the collection, use or provision to Moat of your Information; including maintaining an easily accessible privacy policy which will be linked to conspicuously from the applicable home page and other relevant pages of the applicable websites or within the applicable applications.  Such links will contain the word "Privacy."  The privacy policy must comply with the requirements of the Rules.  S. and applicable economic sanctions and export control laws and regulations may apply under these Terms and you and Moat each agree to comply with these laws and regulations as applicable to each party.  You are solely responsible for the authorization and management of User accounts across geographic locations, as well as export control and geographic transfer of your Information.

8. Miscellaneous

8.1 Moat may collect and distribute externally de-identified, aggregate data that was derived from the Services (e.g., 1,000,000 ads analyzed by the Services) or de-identified, aggregate data collected through the usage of the Services, commercial information, statistics, log files and similar information gathered by Moat, including benchmarking, performance and usage information, provided that such data cannot identify you or your Users.

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 Moat 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.  Moat may give notices to you by electronic mail to your e-mail address on record in Moat’s account information or by written communication sent by first class mail or pre-paid post to your address on record in Moat’s account information.

8.4 Moat is an independent contractor, and no partnership, joint venture, or agency relationship exists between the parties.  Moat’s business partners and other third parties, including any third parties with whom the Services have integrations or that are retained by you, are independent of Moat and are not Moat’s agents.  Moat is not liable for, bound by, or responsible for any problems with the Services or your Information arising due to any acts of any such business partner or third party.  Nothing in these Terms limits Moat’s right to do business with any other third parties.  These Terms are the entire agreement between you and Moat related to the Services described herein and supersede any prior or contemporaneous agreements.  If Moat takes no action for your failure to comply with any part of these Terms, it does not mean that Moat 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 Services, or any interest in the Services, to another individual or entity.  Moat may modify or update the Services or these Terms at any time.  You should review these Terms regularly and it is your responsibility to do so.  Moat 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 Services will become effective immediately. If you do not agree to any change in the Services or these Terms, you will stop using the Services.  Your continued use of the Services following changes to the Services or these Terms represents your acceptance of those changes. 

9. Definitions

9.1 "Information" means all data, content and material of yours, in any format, collected by the Technology and provided to Moat by you, the Technology or Third Party Services as part of your use of the Services. 

9.2 "Services" means the suite of technology and services owned by Moat, which are provisioned to you for testing and evaluation purposes under these Terms, known as Moat Pro or Moat Analytics, or both, 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 Moat or its affiliates that you may access through, within, or in conjunction with your use of, the Services.  Third Party Content includes third-party sourced materials accessed or obtained by your use of the Services or any Moat-provided tools.

9.4 "Users" means those employees, contractors, and end users, as applicable, authorized by you or on your behalf to use the Services in accordance with these Terms.

Last updated on May 25th, 2017.

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