Minekey Recommendations Service - Terms of Use

 
Effective April 16, 2007
 

The Minekey Recommendations web service ("Recommendations Service") is owned and operated by Minekey Inc. ("Minekey"). By using the Recommendations Service, you accept and agree to be bound by the following terms and conditions (the "Terms of Use").

0. Definitions.

"End User" shall mean users of the site.

"Site" shall mean the Web site or sites on which you place Recommendations Code, which renders the Recommendations Widgets thereby allowing End Users to receive personalized recommendations.

"Content" shall mean any editorial, text data, graphic, or media file that is linked to or referred to within a Content Description.

"Content Description" shall mean any of the metadata, tags, tag values, links, or other materials used to describe Content within an item in one or more RSS feeds.

"Recommendations" shall mean a set of Content Descriptions suggested by the Recommendations platform as having relevance or correlation to previously rated Content Descriptions.

"Recommendations Code" shall mean HTML, JavaScript, or similar programming code which renders the Recommendations Widget.

"Recommendations Widget" shall mean any Minekey hosted or controlled web page frame that contains and displays personalized Recommendations or other Minekey-provided Content Descriptions to an End User.

"Preference Data" shall mean any implicit or explicit ratings of Content items provided by End Users.

"Brand Marks" shall be defined as the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time.

"Intellectual Property Rights" shall mean any and all rights existing from time to time under patent law, copyright law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide.

1. Services.

1.1 Description of Service. Minekey's Recommendations Service assists you in providing Recommendations on your Site by utilizing Minekey's Recommendations Engine. The Recommendations Service makes use of Content Descriptions in an RSS feed as the data exchange mechanism between your Content and Minekey's Recommendations Engine. Placing Recommendations Code in your Site embeds Recommendations Widget within your Site. Minekey will receive inputs from your Site at Minekey's network interface via the Recommendations Code, process the inputs using Minekey's Recommendaions Engine, and display personalized recommendations in a Recommendations Widget.

1.2 Advertising. In return for providing the Recommendations Service, unless otherwise agreed to by both parties, Minekey shall have the exclusive right to serve advertisements within any Recommendations Widget. Minekey shall have sole and complete control over the content of the Recommendations Widget. You shall not in any way or for any purpose (including for purposes of advertising) distort, truncate, overlay, or mask any Recommendations Widget nor shall you alter or interfere with any advertisements or set of recommendations provided by Minekey.

1.3 Attribution. All Recommendations Frames shall conspicuously display a graphic (available at http://www.minekey.com/ images/logo_main.gif) that indicates that the Recommendations Service is provided by Minekey. The graphic shall link to the Minekey Recommendations site located at http://www.minekey.com or such other address as Minekey may designate from time to time during the Term.

1.4 Modification of Services. Unless explicitly stated otherwise, the Recommendations Service may be modified or terminated at any time by Minekey for any reason, and without notice, without liability to you, any End User, or any third party. Any new features that augment or enhance the current Recommendation Service shall be subject to the Terms of Use.

1.5 Modifications of Terms. Minekey may modify these Terms of Use at any time with or without notice, and you can review the most current version of the Terms of Use online at any time at http://www.minekey.com/terms. If a modification is unacceptable to you, you may cancel the Recommendation Service on the Site and terminate the Terms of Use by removing the Recommendations Code from the Site. If you continue to use the Recommendations Code on a Site, you will be deemed to have accepted the modifications.

1.6 Non-Exclusivity. You understand that Minekey will provide the Recommendations Service on a nonexclusive basis, and that Minekey will continue to customize and provide its services to other parties for use in connection with a variety of applications.

1.7 Non-Site Use. The Recommendations Service has been designed for Site-specific use in mind. If you would like to access the Recommendations Service through any means other than a Site, including but not limited to through an application such as a toolbar, plug-in, or other executable code that runs a user's computer or though a standalone digital media player or mobile device, then you must first obtain Minekey's prior written consent by submitting an email request to partnerships@minekey.com.

1.8 Your Service Obligations. Your Site shall receive inputs from End Users, which are to be forwarded by the Recommendations Code to Minekey. You shall be responsible for providing all hardware and software and network connectivity required to perform your obligations under the Terms of Use, including but not limited to the following: (a) implementing and maintaining the Site, (b) implementing and maintaining the interface and connectivity between the Site and the Recommendations Service, and (c) receiving inputs from an End User and transmitting the inputs to Minekey.

2. Conduct.

You shall be responsible for compliance with all applicable laws, rules and regulations, if any, related to the performance of your obligations under the Terms of Use. You shall not, and shall not allow any third party to: (a) edit, modify, truncate, filter or change the order of the information contained in or sent or received by Recommendations Widget (either individually or collectively), including, without limitation, by way of commingling advertising or Recommendations with non-Minekey provided recommendation results or advertising; (b) obscure any portion of a Recommendations Control or Recommendations Frame; (c) display any Recommendations Control or Recommendations Frame in pop-up, pop-under, exit windows, expanding buttons, or animation; (d) display any Recommendations Frames to any third parties other than End Users; (e) minimize, remove or otherwise inhibit the full and complete display of any Recommendations Frame (including any advertisements or Recommendations); (f) directly or indirectly access, launch and/or activate the Recommendations Service through or from, or otherwise incorporate the Service in, any Client Application, Web site or other means other than the Site, and then only to the extent expressly permitted herein; (g) transfer, sell, lease, syndicate, sub-syndicate, lend, or use for co-branding, timesharing, service bureau or other unauthorized purposes any Recommendation Service or access thereto (including, but not limited to Recommendations, or any part, copy or derivative thereof); (h) except for arrangements or agreements with End Users for premium subscription services, Content or item purchases, or similar End User-related commercial transactions, enter into any arrangement or agreement under which any third party pays you fees, you pay any third party fees, or either shares in any revenue payments and/or royalties for any Recommendations; (i) directly or indirectly generate queries, or impressions of or clicks on advertisements, through any automated, deceptive, fraudulent or other invalid means (including, but not limited to, click spam, robots, macro programs, and Internet agents); (j) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any Recommendations Service or any other Minekey technology, content, data, routines, algorithms, methods, ideas design, user interface techniques, software, materials, and documentation; (k) remove, deface, obscure, or alter Minekey's copyright notice, trademarks or other proprietary rights notices affixed to or provided as a part of any Recommendations Service or any other Minekey technology, software, materials and documentation; (l) crawl, spider, index or in any non-transitory manner store or cache information obtained from the Recommendations Service (including, but not limited to, Recommendations, or any part, copy or derivative thereof); (m) attempt to hack into or access without authorization any non-Site related metrics from the Recommendations Engine; (n) create or attempt to create a substitute or similar service or product through use of or access to any of the Recommendations Service or proprietary information related thereto; and/or (o) engage in any action or practice that reflects poorly on Minekey or otherwise disparages or devalues Minekey's reputation or goodwill. Further, the Site shall not contain any explicit, hate-related, or violent content or contain any other material, products, or services that violate or encourage conduct that would violate any criminal laws, any other applicable laws, or any third party rights.

3. Proprietary Rights.

3.1 Minekey Rights. You acknowledge that Minekey owns all right, title and interest, including without limitation all Intellectual Property Rights, in and to the Recommendations Service (including Recommendations Code, Minekey's Recommendations Engine and Minekey's Marks, and excluding items licensed by Minekey from third parties), and that you shall not acquire any right, title, or interest in or to the Recommendations Service (including Recommendations Code, Minekey's Recommendations Engine, and Minekey's Marks), except as expressly set forth in the Terms of Use.

3.2 Brand Marks. You hereby grant to Minekey a nontransferable, nonexclusive license during the Term to use your Brand Marks to advertise that you are using the Recommendations Service. Minekey hereby grants to you a nontransferable, nonsublicenseable, nonexclusive license during the Term to display Minekey's Brand Marks, without modification or distortion and in keeping with the use of the Brand Marks on the Minekey site and within the Recommendations Service, for the purpose of promoting or advertising that you use the Recommendations Service. Minekey may modify Minekey's Brand Marks or issue Trademark Guidelines and Minekey will post such notice on the Minekey web site. Except as set forth in this Section 3.2, nothing in the Terms of Use shall grant or shall be deemed to grant to one party any right, title or interest in or to the other party's Marks. All use by you of Minekey's Brand Marks (including any goodwill associated therewith) shall inure to the benefit of Minekey. Minekey, Minekey, the Minekey logo, Minekey Recommendations, and other marks that incorporate the word Minekey are trademarks of Minekey.

3.3 Copyright Infringement. It is Minekey's policy to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act. For directions and more information, please see http://www.copyright.gov/legislation/dmca.pdf. Use of the Recommendations Service for purposes that encourage or induce copyright infringement is strictly prohibited.

4. Privacy Policy.

Refer to Minekey's Privacy Policy at: http://www.minekey.com/privacy.

5. Warranties and Disclaimer.

5.1 Your Warranties. You warrant and represent that:
(1) All information provided by you to Minekey in connection with the Recommendations Service is true and accurate;
(2) You have read and agree to Minekey's Privacy Policy, available at http://www.minekey.com/privacy  
(3) You have read and agree to Minekey's terms and conditions agreement, available at http://www.minekey.com/terms and You have full power and authority to enter into the Terms of Use;
(4) Your Marks, Content, or Site do not:
  (a) infringe any Intellectual Property Rights of any third party,
  (b) constitute defamation, slander, libel or obscenity,
  (c) result in any consumer fraud, product liability, breach of contract to which you are a party or cause injury to any third party,
  (d) promote violence or contain hate speech,
  (e) promote explicit or illegal activities, gambling, or the sale of tobacco or alcohol to persons under twenty-one (21) years of age, or
  (f) violate any applicable law, statute, ordinance, or regulations;
(5)You shall perform all of your obligations under the Terms of Use in accordance with applicable laws.

5.2 Disclaimer of Warranties. MINEKEY MAKES NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE RECOMMENDATIONS SERVICE AND MINEKEY MARKS. THE RECOMMENDATIONS SERVICE AND MINEKEY MARKS ARE DISTRIBUTED AND PROVIDED ON AN "AS IS, AS AVAILABLE" BASIS. MINEKEY DOES NOT WARRANT THAT THE RECOMMENDATIONS SERVICE AND MINEKEY MARKS WILL MEET YOUR REQUIREMENTS OR THAT PERFORMANCE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE INCLUDING ANY ERRORS OR OMISSIONS IN THE RECOMMENDATIONS OBTAINED THROUGH USE OF THE SERVICE. MINEKEY MAKES NO WARRANTY THAT RECOMMENDATIONS SERVICE WILL INCLUDE ALL RELEVANT CONTENT ITEMS.

6. Indemnification.

You will indemnify, defend, and hold Minekey harmless from any third party lawsuit or proceeding brought against Minekey based upon a claim that would constitute a breach of any warranty, representation, or covenant made by you under the Terms of Use, including but not limited to any third party lawsuit or proceeding brought against Minekey based upon a claim that your Content, Site, or Brand Marks infringe any copyright, trade secret, or trademark of the third party or slanders or libels any person, firm, corporation, or association. Your indemnification will include (1) all attorneys' fees and costs associated with the defense of such a claim, (2) all damages and costs finally awarded, and (3) the full cost of any settlement entered into by you. Minekey shall (1) notify you of any such claim, (2) provide you with reasonable information, assistance, and cooperation in defending the lawsuit or proceeding (to the extent requested by you), and (3) give you full control and sole authority over the defense and settlement of such claim. You will not enter into any settlement or compromise of any such claim without Minekey's prior consent, which shall not be unreasonably withheld.

7. Limitation of Liability.

MINEKEY SHALL NOT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THE TERMS OF USE OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY THEORY OF LIABILITY INCLUDING BUT NOT LIMITED TO CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, OR OTHER DAMAGES ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE RECOMMENDATIONS SERVICES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES, LOSS OF PROFITS, LOSS OR INACCURACY, CORRUPTION OF DATA, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE, OR TECHNOLOGY. THIS LIMITATION SHALL APPLY EVEN IF MINEKEY WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN. THE RECOMMENDATIONS SERVICE IS PROVIDED WITHOUT CHARGE AND THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK UNDER THE TERMS OF USE. SOME STATES DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.

8. Term and Termination.

8.1 Term. The term of the Terms of Use (the "Term") shall commence on the date upon which you add Recommendations Code to Your Site and shall continue in force thereafter, unless terminated as provided herein.

8.2 Termination. Minekey may change, suspend or discontinue all or any aspect of the Recommendations Service, including their availability, at any time, and may terminate your use of the Recommendations Service at any time. In addition, either party may terminate the Terms of Use at any time, for any reason, or for no reason including, but not limited to, if you engage in any action that reflects poorly on Minekey or otherwise disparages or devalues the Minekey's Brand Marks or Minekey's reputation or goodwill. If you desire to terminate the Terms of Use, you must remove the Recommendations Code and the Recommendations Widget from your Site.

8.3 Rejection of Application. Minekey shall have the right, in its sole discretion, to reject any request to use the Recommendations Service at any time and for any reason, and such rejection shall render null and void the Terms of Use between you and Minekey. Minekey shall not be liable to you for damages of any sort resulting from its decision to reject such a request.

8.4 Effect of Termination. Upon the termination of the Terms of Use for any reason (i) all license rights granted herein shall terminate and (ii) You shall immediately delete any and all Minekey's Marks, Recommendations Code, and Recommendations Widget from the Site.

8.5 Survival. In the event of any termination or expiration of the Terms of Use for any reason, Sections 3.1, 5, 6, 7, 8.4, 8.5, 8.6, and 9 shall survive termination. Neither party shall be liable to the other party for damages of any sort resulting solely from terminating the Terms of Use in accordance with its terms.

8.6 Remedies. You acknowledge that your breach of service/license restrictions contained herein may cause irreparable harm to Minekey, the extent of which would be difficult to ascertain. Accordingly, You agree that, in addition to any other remedies to which Minekey may be legally entitled, Minekey shall have the right to seek immediate injunctive relief in the event of a breach of such sections by you or any of your officers, employees, consultants or other agents.

9. Miscellaneous.

9.1 Non-Assignment. You may not assign your rights or delegate your obligations under the Terms of Use without Minekey's prior written consent. Nothing in the Terms of Use should be construed to confer any rights to third party beneficiaries.

9.2 Notices. Any notice to Minekey required for or permitted by the Terms of Use shall be in writing and shall be delivered as follows with notice deemed given as indicated: (i) by personal delivery when delivered personally, (ii) by overnight courier upon written verification of receipt, or (iii) by certified or registered mail, return receipt requested, upon verification of receipt. All notices to Minekey must be sent to the attention of the Minekey Legal Department at the address as provided at http://www.minekey.com/contact.

9.3 Governing Law and Venue. The Terms of Use will be governed by and construed in accordance with the laws of the State of California, without regard to conflict of law principles. Any dispute or claim arising out of or in connection with the Terms of Use shall be adjudicated in Santa Clara County, California.

9.4 Independent Contractors. The parties are independent contractors. Neither party shall be deemed to be an employee, agent, partner or legal representative of the other for any purpose and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other.

9.5 Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, earthquakes, acts of God, war, governmental action, or any other cause, which is beyond the reasonable control of such party.

9.6 Waiver. The failure of Minekey to require performance by you of any provision shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by Minekey of a breach of any provision hereof be taken or held to be a waiver of the provision itself.

9.7 Severability. If any provision of the Terms of Use is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of the Terms of Use shall remain in full force and effect.

9.8 Entire Agreement. These Terms of Use constitute the entire agreement between the parties with respect to the subject matter hereof. The Terms of use supersede, and the terms of the Terms of Use govern, any other prior or collateral agreements with respect to the subject matter hereof.