Last Updated: 3 Oct 2019
1. This is a Legally Binding Agreement between you and TrendMD
TrendMD will revise this ToU as the Site and/or Service evolves. By using the Site and/or Service, you agree to the then-current version of this ToU as posted on the Site. If at any point you do not agree to any portion of the then-current version of this ToU, you must immediately stop using the Site and/or Service.
2. Description of Services
Through the Site you may select from a variety of Services offered as described below. The Services we provide pertain to hyperlinks to peer-reviewed articles and/or content published in accredited journals and/or websites as determined by TrendMD ("Content") on the Site, displayed via the Software and accessed by users of your website, and provided by you and promoted through the Services. You are granted access to the TrendMD dashboard ("Dashboard"), which displays Data, and allows you to control certain settings of the Service.
How we collect, analyze, and store your content. Our Software uses automated software, known as "robots" or "crawlers", to fetch your files for inclusion in recommendations. Your website needs to be structured in a way that makes it possible to either "crawl" it in this manner, or download directly via an API. In particular, automatic crawlers need to be able to discover and fetch the URLs of articles you designate.
- Our Software crawls the publicly available content from your registered websites.
- If granted access, our Software indexes non-publicly available content from your registered websites via an API provided by you.
- Download publicly and/or non-publicly available content (i.e. abstracts, full-length articles)
- Store publicly available content in a private database
- Parse page to isolate meta data. Our software uses automated software, known as "parsers", to identify bibliographic data of your papers, as well as references between the papers. Incorrect identification of bibliographic data or references will lead to poor indexing of your site. Some documents may not be included at all, some may be included with incorrect author names or titles, and some may rank lower in the search results, because their (incorrect) bibliographic data would not match (correct) references to them from other papers. To avoid such problems, you need to provide bibliographic data and references in a way that automated "parser" software can process.
- Use these data in future to improve recommendations presented on your registered websites.
Insertion of Recirculation Content. You shall use our Software and Services to display links on your registered websites to your Content ("Recirculation Content"). While TrendMD and its Software endeavours to provide relevant Recirculation Content, TrendMD makes no representation or warranty regarding the relevance or appropriateness of any Recirculation Content.
Insertion of Third-Party Promoted Content and Exchange Content. You shall use our Software and Services to display links on your registered websites to third-party, published, peer-reviewed and/or scholarly content ("Third-Party Promoted Content"). You can block up to a certain number of Third-Party Promoted content sources with the Dashboard, or as many sources up to your discretion if negotiated with TrendMD and approved in writing. You shall earn 0.5 "traffic credits" for every one click that occurs on Third-Party Promoted Content. Traffic credits are accumulated in your credit balance displayed in your Dashboard. One "traffic credit" is equal to one visitor back to your registered websites via links to your content displayed on third-party sites in the TrendMD Network ("Exchange Content"). You shall spend one traffic credit for every one click that occurs on your Exchange Content. TrendMD shall continue to distribute your Exchange Content until your credit balance is 0 credits. TrendMD makes no representation or warranty or guarantee regarding the relevance of the websites where your Exchange Content may be displayed, or the relevance of the Third-Party Promoted Content that may be displayed. This portion of the Service is provided at no charge to you.
Revenue Share: Unless negotiated otherwise on a per-case basis with TrendMD, if your registered website has less than 1 Million visitors per month, you are required to use the Exchange Content service. If your registered websites have >1 Million visitors per month, you will earn a a revenue share from clicks on Third-Party Promoted Content. The revenue share ("Revenue Share") payable to you will be up to 50% of the net revenues actually received by TrendMD in respect of such traffic, at a cost-per-click, as determined by TrendMD in its sole discretion. Revenue Share payments shall be made in accordance with the relevant section "Revenue Share" below.
- In case you are earning revenue share from clicks on Third-Party Promoted Content service, you can terminate the current agreement and remove the TrendMD widget from your website, with or without cause, only upon delivering a 90 day Notice of Termination.
Termination shall be effective on the ninetieth (90th) day after the date of actual receipt of such notice by the non-terminating party (TrendMD).
Suppose, within the 90 days after Notice of Termination has been filed, you decide to uninstall the TrendMD widget from your website, you will be obliged to pay all financial losses cause to TrendMD that result from this action.
TrendMD will calculate the actual prejudice based on its historical figures of website traffic.
Insertion of your Promoted Content. You may elect to use our Software and Services to have links to your Content displayed on the websites of other users in the TrendMD Network ("Promoted Content") for a fee negotiated with TrendMD at the time of purchase of traffic credits. You shall spend one traffic credit for every one click that occurs on your Promoted Content. TrendMD shall continue to distribute your Promoted Content until the earlier of: (i) your credit balance is 0 credits, or (ii) you disabling Promoted Content through the Dashboard. TrendMD makes no representation or warranty or guarantee regarding the relevance of the websites where your Promoted Content may be displayed.
Professional and Enterprise Plans. You may elect to subscribe to additional Services offered by TrendMD. TrendMD provides a suite of Services that grants subscribers access to additional traffic, analytics, and customization and control options. The Professional Plan starts at $250 USD per month, and can be cancelled or renewed at any time.
3. Termination of Service
TrendMD reserves the right to deny service to any person and to reject any Content in TrendMD's sole and absolute discretion for any reason. The Service is offered with the understanding that TrendMD may terminate any account registered to you and/or your access to the Service at any time, for any reason or no reason, including without limitation for any violation of this ToU. TrendMD may stop offering and/or supporting the Service or any portion thereof at any time.
4. Accounts and Security
Eligibility. You represent that you are an adult and have the legal capacity to enter a contract in the jurisdiction where you reside.
Account. To access the Service, you must have an account. You can create an account by completing the registration process on the Site. By registering, you will have the ability to control certain settings for the Service. Depending upon which Services you select, you may be required to supply contact and other information.
Account Security. Maintaining account security is very important. You are entirely responsible for maintaining the confidentiality of the account password. You agree to notify TrendMD immediately if you believe that an account password may have been compromised.
Account Sharing or Transfers. You may not share or transfer any account, except that you may permit your minor child to use an account registered to you so long as you accept full responsibility for the conduct of that child. You may not disclose your password to anyone else.
Cancellation by You. You have the right to cancel any account registered to you at any time. You may cancel any account registered to you by following the instructions on the Site.
Effect of Account Termination or Cancellation. If you voluntarily terminate an account or allow that account to lapse, you may reactivate that account at any time through the account interface on the Site. Accounts terminated by TrendMD for any type of abuse, including without limitation a violation of this ToU, may not be reactivated for any reason.
- Information we collect automatically: Whenever your users visit or interact with the Service, TrendMD, may use a variety of technologies that automatically or passively collect information about how the Service is accessed and used ("Usage Information"). Usage Information may include, in part, browser type, operating system, an estimate of your geographic location associated with your IP address, the page served, the time, referring URLs and other information normally transmitted in HTTP requests. This statistical data provides us with information about the use of the Service, such as how many visitors visit a specific page on which the Service is installed, how long they stay on that page, the type of content on that page, which hyperlinks, if any, they "click" on and how they generally engage with that page. This information helps us keep the Service fresh and interesting to our users and tailor content to each visitor’s interests. Usage Information is generally non-identifying, but if TrendMD associates it with you as a specific and identifiable person (for example, because you have registered for the Service), TrendMD treats it as "Personal Information" (i.e. information that could reasonably be used to contact you or to identify you personally, such as your name, e-mail address, telephone number, or home address) and will use it to provide you with more targeted recommendations.
- We also automatically collect your IP address or other unique identifier "Device Identifier") for each computer, mobile device, technology or other device (collectively, "Device") you use to access the Service. A Device Identifier is a number that is automatically assigned to your Device when you access a web site or its servers, and our computers identify each Device by its Device Identifier.
- Our Service uses several different technologies to collect Usage Information, including Device Identifiers. These may include, without limitation:
- Pixel tags. A pixel tag is a transparent graphic image, sometimes called a web beacon or tracking beacon, placed on a web page or in an email, which indicates that a page or email has been viewed. In addition, a pixel tag may tell your browser to get content from another server.
- How we store and use the information we collect: TrendMD uses the information we collect about and from you for a variety of business purposes, including for example, to: respond to your questions and requests; provide you with access to certain functions and features of the Service; verify your identity; communicate with you about your account and activities using the Service and to tailor content recommendations we serve you; improve the Service and for internal business purposes; process applications and transactions. We store these collected data indefinitely on our encrypted servers.
- Sharing of information: We may share Personal Information and/or Device Identifier data with third-parties. We may share non-Personal Information, such as aggregate user statistics, demographic information, and Usage Information with third parties. We may combine your Usage Information with those of other users of the Service in order to share trend information with third parties. For example, we may use your Usage Information to tell a prospective sponsor how many people in the TrendMD network visit journal web sites and/or articles each month.
6. Software License
License Grant. Subject to the terms of this ToU any corresponding publisher or services agreement, TrendMD hereby grants a limited, non-exclusive, personal, non-sublicensable, non-assignable license to (i) download, install and use the Service and any application program interface or any other software code that we may make available to you from time to time provided by TrendMD (collectively, the "Software") to develop, reproduce and distribute promotional capabilities that interoperate with the Site or any other web property owned by TrendMD; (ii) any TrendMD end-user documentation, solely when bundled with Service; and (iii) any upgrades, updates and new versions of the Software and related Services, as further described below. Such license shall include the right to use any TrendMD intellectual property rights associated with or related to use of the Software, other matters related to the Service, and the TrendMD end user documentation, solely in connection with the use of the Service as described above. The Software may only be used in connection with the Service and in accordance with this ToU and any rules, restrictions or documentation set forth by TrendMD from time to time.
Proprietary Rights. As between you and TrendMD, the Service, the Software, all data and information generated thereby and all intellectual property rights in and to the Software are and shall at all times remain the sole and exclusive property of TrendMD and are protected by applicable intellectual property laws and treaties. All data and other information related to the Site or collected by way of the Service on any website shall be the sole property of TrendMD. You acknowledge that you do not acquire any ownership rights in or to the Service or such data; however you can user the data for internal purposes.
7. Restrictions and Conditions of Use
Use of Site and Service. As a condition of use, you acknowledge and agree that you may not use the Service for any purpose not reasonably intended by TrendMD. You agree not to license, create derivative works from, transfer, sell or re-sell any information, content, software or services obtained from the Site. TrendMD reserves the right to add or remove information, Content or Services from the Site at any time at its sole discretion.
No Violation of Laws. You agree that you will not, in connection with your use of the Site, Software or the Service, violate any applicable law or regulation. Without limiting the foregoing, you agree that you will not make available through the Software, Site and/or Service any material or information that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity).
Software License Restrictions. Notwithstanding anything to the contrary, you may not: (i) remove any proprietary notices from the Service or any copy of the Software; (ii) cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Software or the Service; (iii) sell, assign, rent, lease, act as a service bureau, or grant rights in the Software or Service, including, without limitation, through sublicense, to any other entity without the prior written consent of TrendMD; or (iv) make any false, misleading or deceptive statement or representation regarding TrendMD and/or the Software or Service.
Misuse of Site and/or Service. You may not connect to or use the Site and/or Service in any way not expressly permitted by this ToU. Without limiting the foregoing, you agree that you will not: (a) institute, assist, or become involved in any type of attack, including without limitation denial of service attacks, upon the Site and/or Service or otherwise attempt to disrupt the Site and/or Service or any other person's use of the Site and/or Service; (b) attempt to gain unauthorized access to the Site, Service, accounts registered to other users, or the computer systems or networks connected to the Site and/or Service; (c) use the Site and/or Service for any illegal or unauthorized purpose; (d) use the Site and/or Service to post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any TrendMD user; (e) use the Service to submit stories or comments linking to affiliate programs, multi-level marketing schemes, sites/blogs repurposing existing stories (source hops), or off-topic content; or (f) use the Service with the intention of artificially inflating, deflating or altering the Service, including by way of creating separate user accounts for the purpose of artificially altering TrendMD's services; artificially inflating clicks on Promoted Content or participating in any other organized effort that in any way artificially alters the results of the Service. Furthermore, you may not use the Site or Service to develop, generate, transmit or store information, including any Content that, or use the Service on any website, that: (i) is defamatory, harmful, abusive, obscene or hateful; (ii) in any way obstructs or otherwise interferes with the normal performance of another person's use of the Site and/or Service; (iii) performs any unsolicited commercial communication not permitted by applicable law; (iv) constitutes harassment or a violation of privacy or threatens other people or groups of people; (v) is harmful to children in any manner; (vi) violates any applicable law, regulation or ordinance; (vii) makes any false, misleading or deceptive statement or representation regarding TrendMD and/or the Software or Service; (viii) constitutes phishing, pharming or impersonates any other person, or steals or assumes any person's identity (whether a real identity or online nickname or alias); (ix) displays adult, obscene, pornographic, libelous, infringing, abusive or defamatory content; (x) participates in, or encourages participation in, illegal activities; (xi) promotes hate or discrimination; or (xii) facilitates the sale of firearms or illegal drugs. TrendMD may remove any Content from the Site and Service for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content), at any time.
No Commercial Uses. Except as provided in this ToU, you agree that you will not use the Software, the Site or the Service for any commercial purpose or the benefit of any third party or charge any person, or receive any compensation for, the use of the Software, the Site or Service.
No Data Mining or Harmful Code. You agree that you will not (a) obtain or attempt to obtain any information from the Service, including without limitation email information of other account holders or other Software data; (b) intercept, examine or otherwise observe any proprietary communications protocol used by the Software or the Service, whether through the use of a network analyzer, packet sniffer or other device; or (c) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan-horse routing, trap door, time bomb or any other codes, instructions or third-party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, damage or disassemble, the Software, the Site or the Service.
Links from the Site and Services. The Site may contain, and Services may generate, links to websites operated by other parties, including Promotional Content, Exchange Content and other user Content. The use of these websites is at your own risk. The linked websites are not under the control of TrendMD, and TrendMD is not responsible for the content available on the other websites. Such links do not imply TrendMD's endorsement of information or material on any other website and TrendMD disclaims all liability with regard to your access to and use of such linked websites.
Links to the Site. Unless otherwise set forth in a written agreement between you and TrendMD, you must adhere to TrendMD's linking policy as follows: (i) the appearance, position and other aspects of the link may not be such as to damage or dilute the goodwill associated with TrendMD's and/or its licensors' names and trademarks, (ii) the appearance, position and other attributes of the link may not create the false appearance that your organization or entity is sponsored by, affiliated with, or associated with TrendMD, (iii) when selected by a user, the link must display the Site on full-screen and not within a "frame" on the linking Site, and (iv) TrendMD reserves the right to revoke its consent to the link at any time and in its sole discretion.
9. Representations and Warranties
You represent and warrant to TrendMD that (a) you are the owner (or is otherwise the authorized licensee) of the copyright or other intellectual property rights in any Content provided to TrendMD hereunder, and have the right to deliver to, and to authorize TrendMD to, display, perform, distribute and exploit such Content in the manner contemplated by this ToU without additional fee or payment whatsoever to any third party, (b) you shall not impersonate any person or entity or otherwise misrepresent its affiliation with a person or entity; and (c) none of your Content shall violate the terms of Section 7.D.
10. Intellectual Property
Trademarks. TrendMD hereby grants you a personal, limited, non-exclusive, non-transferable, fully-paid license to use the marks, graphics, logos, designs, page headers, button icons, scripts, and service names comprise registered and unregistered trademarks, service marks and trade dress of TrendMD in Canada and/or other countries (the "TrendMD Marks") in conjunction with your use of the Software or the Service on any pages of your websites or affiliate websites that feature any aspect of the Service. You may publish blog posts on your blog or affiliate blogs that include the use of TrendMD Marks at any time without additional authorization by TrendMD, provided that you make reasonable efforts to send the blog post to TrendMD prior to or concurrent with publishing thereof. Nothing in this Agreement grants you ownership or any rights in or to use the TrendMD Marks, except in accordance with this license. Under no circumstances may you disparage or otherwise abuse the TrendMD Marks, nor violate any terms of these ToU. The rights granted to you in this license will terminate upon any termination or expiration of this ToU and you will no longer make any use of any TrendMD Marks.
Copyright. The Site, Service and Software and the content made available through the Site, Service and Software are protected by Canadian and international copyright laws. Except for your use of the content in connection with the Service you may not use, modify, reproduce or distribute any of the content, or the design or layout of the Site, Service or Software, or individual sections of the content, design or layout of the Site without TrendMD's express prior written permission.
Copyright Agent. TrendMD respects the intellectual property rights of others, and requires that the people who use the Site and the Service do the same. TrendMD maintains a policy of termination in appropriate circumstances of users who use the Site and/or Service for repeat infringements. If you believe that your work has been copied in a way that constitutes copyright infringement, please forward the following information to the Copyright Agent, designated as such pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(2), named below:
- Your address, telephone number, and email address;
- A description of the copyrighted work that you claim has been infringed;
- A description of where the alleged infringing material is located;
- A statement by you that you have a good faith belief that the disputed use is not authorized by you, the copyright owner, its agent, or the law;
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and
- A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
101 College St. Suite 402
Email: [email protected]
The Site and the Service are operated by TrendMD in Canada. Those who choose to access the Site, and/or the Service from locations outside Canada do so on their own initiative and are responsible for compliance with applicable local laws.
12. Submitted Content
TrendMD does not claim ownership of any Content you make available through the Service. .If supplied by you, you shall supply Content to us in such formats and as otherwise consistent with our current and prevailing specification requirements. You agree that TrendMD may use your name, your co-authors name, the publisher, as well as any other relevant data from your Content, in its marketing materials and web sites as part of a list of its customers, and in any advertisement, news release or other publication of TrendMD for the purpose of publicizing these ToU and/or TrendMD's relationship with you. TrendMD reserves the right to set your campaign live once the funds have been added to your account and content has been approved by our team.
13. Reporting; Terms of Payment
Revenue Share. If you have elected to display Third-Party Promoted Content, TrendMD will report the results of any Revenue Share earned by you via an online reporting tool that may be accessed by you to review pertinent Revenue Share. Revenue will be accumulated as credits in your account credit balance. You will be paid the Revenue Share based on the number of credits and equivalent monetary value per credit that have accumulated in your credit balance over the previous 30-day period. TrendMD shall make Revenue Share payments within 30 days of the end of the month, provided that TrendMD shall not be obligated to make any payment to you until you have earned an aggregate of $50.00 of unpaid Revenue Share.
Weekly Subscription for Traffic. If you have elected to insert your Promoted Content, you shall pay TrendMD the fees described on the TrendMD Site at the time of purchase. Payment is collected in advance of visitors delivered to your Promoted Content. TrendMD will invoice fees to you on Sunday evening of each calendar week at a rate of $1 USD per 1 traffic credit. Your Weekly Subscription for Traffic can be cancelled at anytime via your reporting dashboard on the TrendMD Site. Each traffic credit is worth 1 visitor to your Promoted Content. The credit balance on your TrendMD reporting dashboard states how many credits you have at any given time. In the event your credit balance goes to zero, your Promoted Content will no longer be featured on third-party sites using the TrendMD Service. TrendMD will provide you with timely reports, which will provide you with information about the amount of visitors delivered per day of the campaign and the credits you have spent. It is understood and agreed that the final monthly reports provided by TrendMD may differ from the daily reports and the final reports will provide the conclusive basis for TrendMD's invoices to you. You may use your own tracking pixel as well; in the event that there is a material discrepancy between your numbers and TrendMD's numbers (i.e., your reporting indicates that the visitors delivered to your Promoted Content is at least 10% lower than the number reported by TrendMD), the parties agree to work in good faith to identify the correct amount to be paid to TrendMD. If the discrepancy is less than 10%, TrendMD's numbers shall be conclusive. In the event that TrendMD is unable to deliver Audience in the amount stated on the TrendMD Site for the applicable campaign, your sole remedies shall be to (i) to replace the Promoted Content with other Promoted Content (subject to TrendMD's approval) to complete the campaign; or (ii) to pay only for the visitors actually delivered by TrendMD. In no event shall TrendMD be liable for failure to deliver visitors
Professional and Enterprise Plans. You may elect to subscribe to additional Services offered by TrendMD. You may elect to pay on a monthly or yearly contractual basis for add-on Services offered by TrendMD
You shall pay all sales, use, excise and other taxes which may be levied upon either party in connection with these ToU, except for income taxes.
The Site and the Service are not directed toward children under 13 years of age nor does TrendMD knowingly collect information from children under 13 or allow them to create an account or access account features. If you are under 13, please do not submit any personally identifiable information to TrendMD.
16. Disclaimer of Warranties
You acknowledge that TrendMD has no control over, and no duty to take any action regarding: which users gain access to the Service; what effects the Service may have on you, your website or equipment; the accuracy or how you may interpret, rely, or use the Service including without limitation any loss of reputation or loss of traffic on your website or any website of any of your affiliates; or what actions you may take as a result of having been exposed to the Service. You further acknowledge and agree that TrendMD 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 Content, goods or services available on or through any third party website linked or referred to by any portion of the Service. You release TrendMD from all liability with respect to the Service, and any Content or data provided or accessed via the Service or through the Site. The Site may contain, or direct you to websites containing, information that some people may find offensive or inappropriate. TrendMD makes no representations concerning the Content contained in or accessed via the Service or the Site, including without limitation Promoted Content or Exchange Content, and TrendMD will not be responsible or liable for the contents, accuracy, copyright compliance, legality or decency of third party Content or services accessed via the Service or the Site or for your reliance on any of the foregoing. TrendMD does not make any representation, warranty or guarantee of the quantity or quality of traffic that you will receive under this Agreement.
THE SITE, SOFTWARE AND SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. TRENDMD MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY CONTENT AVAILABLE THROUGH, OR THE PERFORMANCE OF, THE SITE, SOFTWARE OR THE SERVICE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TRENDMD SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING (I) THE NUMBER OF PERSONS WHO WILL VIEW CONTENT, AND (II) ANY BENEFIT YOU MIGHT OBTAIN FROM DISPLAY OF CONTENT BY TRENDMD. YOU ARE RESPONSIBLE FOR VERIFYING ANY INFORMATION BEFORE RELYING ON IT. USE OF THE SITE AND/OR THE SERVICE IS AT YOUR SOLE RISK. TRENDMD DOES NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE SITE AND/OR SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE SITE OR THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SITE OR THE SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
Because some provinces or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimer may not apply to you.
TrendMD represents and warrants that: (i) we have sufficient right, title and interest in the Site, Software and Service to grant the licenses contemplated by this Agreement; and (ii) to the extent we incorporate third party rights into the Software, we have obtained the rights from those third parties necessary to vest in or grant to you the various license rights necessary under this Agreement.
17. Limitation of Liability; SOLE AND EXCLUSIVE REMEDYs
TO THE MAXIMUM EXTENT PERMITTED BY LAW, TRENDMD, ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE "RELATED PARTIES") DISCLAIM ALL LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND FURTHER DISCLAIMS ALL LOSSES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SITE, THE SOFTWARE AND/OR SERVICE, EVEN IF TRENDMD AND/OR RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF TRENDMD OR ANY OF THE RELATED PARTIES EXCEED THE LESSER OF (X) THE TOTAL REVENUE SHARE WE PAID TO YOU DURING THE SIX (6) MONTHS PRIOR TO THE TIME THE CAUSE OF ACTION GIVING RISE TO LIABILITY AROSE, IF SUCH AMOUNT WAS GREATER THAN $0 OR (Y) $100. THE FOREGOING SHALL NOT APPLY TO TRENDMD’S INDEMNIFICATION OBLIGATION.
Because some provinces or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such provinces or jurisdictions, the liability of TrendMD and its affiliates shall be limited to the fullest extent permitted by law.
Each party (the "Indemnifying Party") shall indemnify, defend and hold harmless the other party and its parent and affiliates, and each of its and their respective affiliates, directors, officers, shareholders, members, authorized representatives, employees and agents (collectively, the "Indemnified Party") from and against any and all claims, losses, liabilities, damages, costs, settlements and other expenses (including reasonable legal fees) (collectively, "Claims") that arise out of any third party claim occasioned by any breach or alleged breach of any of the Indemnifying Party’s representations, warranties and obligations of the Agreement. The Indemnified Party shall promptly notify the Indemnifying Party of any Claim, provided, however, that any delay in providing such notice shall not relieve the Indemnifying Party of any of its obligations except to the extent that the Indemnifying Party is actually prejudiced by such delay. The Indemnified Party shall have the right to participate in the defense and settlement of the Claim with counsel of its own choosing and its own expense, subject to the Indemnifying Party’s control thereof.
19. Governing Law; Jurisdiction
This ToU is governed by, and will be construed under, the laws of US and the law of the State of California, without regard to conflict of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Except as provided in Section 20 below (and claims proceeding in any small claims court), all disputes arising out of or related to your use of the Site, the Software and/or the Service shall be subject to the exclusive jurisdiction of the province and federal courts located within Los Angeles, California and you agree to submit to the personal jurisdiction and venue of such courts. If either you or TrendMD commences a lawsuit for a dispute arising under this ToU or relating to the Site, the Software and/or the Service, all of the issues in such action, whether of fact or law, shall be submitted to general judicial reference pursuant to California Code of Civil Procedure sections 638 and 641 through 645.1 or any successor statutes thereto.
20. Binding Arbitration
Arbitration Procedures. You and TrendMD agree that, except as provided in Section 20.D below, all disputes, controversies and claims related to this ToU (each a "Claim"), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the "JAMS Rules") and under the terms set forth in this ToU. In the event of a conflict between the terms set forth in this Section 20 and the JAMS Rules, the terms in this Section 20 will control and prevail.
- Except as otherwise set forth in Section 20.D, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and we will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator's decision regarding the Claim, the award given and the arbitrator's findings and conclusions on which the arbitrator's decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in this ToU, (i) you and TrendMD may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (ii) the arbitrator's decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND TRENDMD WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
Location. Unless mandated otherwise by any applicable JAMS Rules, the arbitration will take place in Toronto, Ontario, Canada. In the event JAMS Rules mandate that you have the option to have the arbitration take place in your hometown area, you must notify TrendMD in writing of your preference to arbitrate in your hometown area within ten (10) business days following your receipt of TrendMD’s arbitration notice. In absence of your timely response, the arbitration will be conducted in Toronto, Ontario, Canada unless the parties mutually agree to video, phone and/or internet connection appearances.
Limitations. You and TrendMD agree that any arbitration shall be limited to the Claim between TrendMD and you individually. YOU AND TRENDMD AGREE THAT (A) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (B) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (C) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
Exceptions to Arbitration. You and TrendMD agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (i) any Claim seeking to enforce or protect, or concerning the validity of, any of your or TrendMD's intellectual property rights; (ii) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (iii) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court's jurisdiction in lieu of arbitration.
21. Fraudulent Activity
TrendMD shall not be liable to Publisher or any third party for any payment for impressions, page views or click-throughs resulting from activity used to artificially increase impressions, page views or click-throughs (including but not limited to incentivized, automated (e.g., bots and spiders) or otherwise deceptive or artificial means) ("Fraudulent Activity"). Publisher shall take commercially reasonable steps to prevent such Fraudulent Activity by blocking IP addresses and/or Publisher's user accounts associated with such Fraudulent Activity.
Publisher shall cooperate with TrendMD in any investigation of possible Fraudulent Activity, including access to Publisher's access logs and other customer and affiliate information, to the extent that such cooperation by the Publisher is commercially reasonable and not in violation of any agreement between the Publisher and a third party. If TrendMD determines the Publisher has knowingly engaged in Fraudulent Activity, then in addition to its other rights and remedies TrendMD may terminate this Agreement effective upon notice and withhold payment up to the amount generated through Fraudulent Activity.
22. General Provisions
ToU Revisions. This ToU may only be revised in a writing signed by both parties.
No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and TrendMD as a result of this ToU or your use of the Service or the Software.
Assignment. TrendMD may assign this ToU, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the ToU without TrendMD's prior written consent, and any unauthorized assignment by you shall be null and void.
Severability. If any part of this ToU is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the ToU shall be given full force and effect.
Attorneys' Fees. In the event any litigation or arbitration is brought by either party in connection with this ToU, the prevailing party shall be entitled to recover from the other party all the reasonable costs, attorneys' fees and other expenses incurred by such prevailing party in the litigation.
No Waiver. Our failure to enforce any provision of this ToU shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by us of any provision, condition or requirement of this ToU shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
Notices. All notices given or required under this ToU shall be in writing and addressed to:
- TrendMD LLC 4023 Kennett Pike 50094, 19807, Wilmington, Delaware.
Equitable Remedies. You hereby agree that TrendMD would be irreparably damaged if the terms of this ToU were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this ToU, in addition to such other remedies as we may otherwise have available to us under applicable laws.
Entire Agreement. This ToU constitutes the entire agreement between you and us with respect to the Site and/or Service and supersedes all prior or contemporaneous communications, whether electronic, oral or written, between you and us with respect to the Site, the Software and/or Service.