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Terms and Conditions
Loomia Recommendations Terms of Use
Effective October 2, 2008
The Loomia Recommendations web service (’Recommendations Service’) is owned and operated by Loomia Inc. (”Loomia”). By using the Recommendations Service, you accept and agree to be bound by the following terms and conditions (the ‘Terms of Use’).
1. Services.
1.1. Description of Service. A basic description of the Service interaction is as follows: You install Loomia-provided Javascript widgets within the pages of your site so that the Service may automatically capture information about the content on those pages (the ‘Catalog’) and provide recommendations. The Service captures user preference data in the form of clickstream data and other implicit and explicit data (the ‘Preference Information’). In response to the Preference Information, Loomia provides to end-users of your Site a set of links (’Recommendation Links’) for suggested items in the Catalog. These Recommendations Links appear in JavaScript widgets and/or API calls and display discovery and personalization capabilities which Loomia may provide through the Service. All Recommendation Links provided by Loomia to users of your Sites shall be links to items contained within the latest version of the Catalog that has been processed by Loomia.
1.2. Attribution. All Widgets displaying Recommendation Links shall conspicuously display a Loomia service graphic provided by Loomia that indicates that the Service is provided by Loomia, unless otherwise agreed upon by Loomia. The graphic shall link to the Loomia site or such other address as Loomia may designate from time to time during the Term.
1.3. Modification of Services. Unless explicitly stated otherwise, the Service may be modified or terminated at any time by Loomia for any reason, and without notice, without liability to you, any user, or any third party. Any new features that augment or enhance the current Service shall be subject to the Terms of Use.
1.4. Modifications of Terms. Loomia will notify all paying customers via email when these Terms of Use change. You may always review the most current version of the Terms of Use online at any time from within your customer dashboard. If a modification is unacceptable to you, you may cancel the Service on the Site and terminate the Terms of Use by canceling your account from within your customer dashboard. If you continue to use the Service on a Site, you will be deemed to have accepted the modifications.
1.5. Non-Exclusivity. You understand that Loomia will provide the Service on a nonexclusive basis, and that Loomia will continue to customize and provide its services to other parties for use in connection with a variety of applications.
1.6. Non-Site Use. The Service has been designed for Site-specific use in mind. If you would like to access the 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 Loomia’s prior written consent by contacting Loomia as specified below.
1.7. Your Service Obligations. Your Site shall receive inputs from users, which are to be forwarded by the Recommendations Code to Loomia. 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 Service, and (c) receiving inputs from an user and transmitting the inputs to Loomia.
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) obscure any portion of a Widget or edit, modify, truncate, filter or change the order of the information contained in or sent or received by any Widget;
(b) display any Widget in pop-up, pop-under, exit windows, expanding buttons, or animation;
(c) display any Widget to any third parties other than Site users;
(d) transfer, sell, lease, syndicate, sub-syndicate, lend, or use for co-branding, timesharing, service bureau or other unauthorized purposes any Service or access thereto
(e) 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);
(f) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any Service or any other Loomia technology, content, data, routines, algorithms, methods, ideas design, user interface techniques, software, materials, and documentation;
(g) remove, deface, obscure, or alter Loomia’s copyright notice, trademarks or other proprietary rights notices affixed to or provided as a part of any Service or any other Loomia technology, software, materials and documentation;
(h) crawl, spider, index or in any non-transitory manner store or cache information obtained from the Service (including, but not limited to, Recommended Links, or any part, copy or derivative thereof);
(i) attempt to hack into or access without authorization any non-Site related metrics from the Service platform;
(j) create or attempt to create a substitute or similar service or product through use of or access to any of the Service or proprietary information related thereto; and/or
(k) engage in any action or practice that reflects poorly on Loomia or otherwise disparages or devalues Loomia’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. Loomia Rights. You acknowledge that Loomia owns all right, title and interest, including without limitation all Intellectual Property Rights, in and to the Service (including Loomia’s recommendation and personalization technology, but excluding items licensed by Loomia from third parties), and that you shall not acquire any right, title, or interest in or to the Service, except as expressly set forth in the Terms of Use. ‘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.
3.2. Brand Marks. You hereby grant to Loomia a nontransferable, nonexclusive license during the Term to use your Brand Marks to advertise that you are using the Service. Loomia hereby grants to you a nontransferable, non-sublicenseable, nonexclusive license during the Term to display Loomia’s Brand Marks within the Widgets, without modification or distortion for the purpose of promoting or advertising that you use the Service. Loomia may modify Loomia’s Brand Marks at any time. 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 Loomia’s Brand Marks (including any goodwill associated therewith) shall inure to the benefit of Loomia. Loomia, the Loomia logo, and Loomia Recommendations are trademarks of Loomia. ‘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.
3.3. Copyright Infringement. Use of the Service for purposes that encourage or induce copyright infringement is strictly prohibited.
4. Privacy Policy.
4.1. Site Registration Information. You understand and agree that Loomia may access, preserve, and disclose registration information regarding the Site and the contents of your account if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to comply with legal process or protect the rights, property and/or safety of Loomia, its affiliates or the public and that such information may contain personal information. Registration information collected by Loomia may be stored and processed in the United States or any other country in which Loomia or its agents maintain facilities. By using the Service, you consent to any such transfer of information outside of your country.
4.2. End User Information. The Service may make use of cookies as a way to identify users and associate them with their Preferences. The Service does not accept or make use of any personally identifiable information such as names or addresses. Although you may gather such information as part of your registration process, Loomia specifically disclaims any association of personally identifiable information with preference information. Attempts by you or third parties under your direction or control to associate personally identifiable information with Preference information without the explicit permission of your users is prohibited.
5. Warranties and Disclaimer.
5.1. Your Warranties. You warrant and represent that:
(1) All information provided by you to Loomia in connection with the Service is true and accurate;
(2) You have read and agree to the Terms of Use,
(3) 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 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. LOOMIA 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 SERVICE AND LOOMIA MARKS. THE SERVICE AND LOOMIA MARKS ARE DISTRIBUTED AND PROVIDED ON AN ‘AS IS, AS AVAILABLE’ BASIS. LOOMIA DOES NOT WARRANT THAT THE SERVICE AND LOOMIA 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. LOOMIA MAKES NO WARRANTY THAT SERVICE WILL INCLUDE ALL RELEVANT CONTENT ITEMS.
6. Indemnification.
You will indemnify, defend, and hold Loomia harmless from any third party lawsuit or proceeding brought against Loomia 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 Loomia based upon a claim that any materials or products on your Site or your 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. Loomia 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 Loomia’s prior consent, which shall not be unreasonably withheld.
7. Limitation of Liability.
LOOMIA 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 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 LOOMIA 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 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 the Service to your Site and shall continue in force thereafter, unless terminated as provided herein.
8.2. Termination. Loomia may change, suspend or discontinue all or any aspect of the Service, including their availability, at any time, and may terminate your use of the 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 Loomia or otherwise disparages or devalues the Loomia’s Brand Marks or Loomia’s reputation or goodwill. If you desire to terminate the Terms of Use, you must remove the Service from your Site.
8.3. Rejection of Application. Loomia shall have the right, in its sole discretion, to reject any request to use the Service at any time and for any reason, and such rejection shall render null and void the Terms of Use between you and Loomia. Loomia 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 remove the Service and delete any and all Loomia Brand Marks 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 any of the terms and conditions contained herein may cause irreparable harm to Loomia, the extent of which would be difficult to ascertain. Accordingly, you agree that, in addition to any other remedies to which Loomia may be legally entitled, Loomia 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 Loomia’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 Loomia 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 Loomia must be sent to the attention of the Loomia Legal Department as provided for below.
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 San Francisco 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 Loomia 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 Loomia 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.