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The following terms and conditions ("Terms of Service") together with the Service Purchase Letter ("Purchase Letter" and collectively, the "Agreement") govern all use of the datanyze.com website (the "Website) and all content, services, features, activities, and products available at or through the Website. The Services are owned and operated by Datanyze, Inc ("Datanyze"). Please read these Terms of Service carefully before using the Services. Access to Datanyze’s Business Contact Database and the Datanyze Exchange Service are governed by the Datanyze Business Contact Database and Exchange Addendum, attached hereto.
BY USING OR ACCESSING THE SERVICES, CLIENT (as defined in Service Purchase Letter) AGREES TO BE BOUND BY THIS TERMS OF SERVICE AND ALL TERMS, POLICIES, AND GUIDELINE INCORPORATED IN THE TERMS OF SERVICE BY REFERENCE. THIS AGREEMENT IS LEGALLY BINDING AND CONDITIONS YOUR USE OF THE SERVICES. If Client does not agree to all the terms and conditions of this Agreement, they may not use the Services.
Datanyze continuously collects and analyzes millions of signals online to determine the usage of different technologies and other buying signals. Client can access Datanyze's data through its web application, an integration to a supported 3rd-party platform, Datanyze browser extension or the Datanyze API, depending on the Client's agreement with Datanyze.
The Service is protected by copyright, trade secret and other forms of intellectual property which belongs to Datanyze and is confidential information of Datanyze (or its suppliers). All rights, title and interest in and to the Service and all modifications to the Service (and all associated intellectual property rights) are and will remain vested in Datanyze or its suppliers. These rights are protected by law and international treaties. Client acknowledges that no rights other than those rights granted herein to use the Service, license or interest to any Datanyze's intellectual property, including but not limited to, copyright, trademarks and/or trade names are granted under this Service Agreement.
Client may choose to or Datanyze may invite you to submit comments or ideas about the Services, including without limitation about how to improve the Services or Datanyze products. By submitting any feedback, Client agrees that such disclosure is gratuitous, unsolicited and without restriction and will not place Datanyze under any fiduciary or other obligation, and that Datanyze is free to use such feedback without any additional compensation to Client, and/or to disclose such feedback on a non-confidential basis or otherwise to anyone.
The Service is licensed to the Client, not sold. Client may not sublicense, resell, share with anyone other than a Representative (as hereinafter defined) (and provided each such Representative is registered as an additional user of the Service), assign (except as set forth herein), pledge, rent or transfer (except as set forth herein) any of their rights under this Agreement in relation to the Service or any portion thereof without explicit permission in writing from Datanyze, which Datanyze shall not unreasonably withhold. Client may not use any robot, crawler, spider, scraper, or other automated means to access the Service for any purpose without Datanyze's express written permission or bypass Datanzye robot exclusion files or other measures used to prevent or restrict access to the Service. Client is expressly prohibited from reverse engineering, decompiling, disassembling or otherwise attempting to discover the Datanyze source code or Service database.
Client may not: (a) use the Servicee for any unlawful purpose, (b) use the Service in a manner that may damage, disable, overburden or impair the Datanyze Services, or (c) use the Service to violate another person or entity's intellectual property rights, terms of service or other statutory or contractual rights, or otherwise in any unlawful way. Client agrees to hold harmless and indemnify Datanyze, and its affiliates, officers, directors, agents, employees, or partners from and against any third party claims arising from or in any way relating to your violation of this provision.
Client shall provide Datanyze with accurate, complete information during the initial registration for the Service. It is Client's responsibility to inform Datanyze of any changes to such information. Each password is solely for one designated person. Client may not permit a) any other person to use the Service under Client's name; or b) make available to multiple users Services licensed for a single user. For billing purposes, the license count is determined by the number of users that connect to the Service. In the event the number of users accessing the Service exceeds the number of users for which licenses have been granted, Datanyze shall invoice Client for any additional users for the remainder of the then current subscription term on a pro-rated basis in accordance with the fees listed on the Website. With respect to the Datanyze Insider service ("Insider"), Client is authorized to permit any or all of its employees and consultants to use Insider (as long as such use is otherwise in accordance with this Agreement) and Client's license with respect to Insider extends to all of its employees and consultants, provided however that Client shall be invoiced and agrees to pay a monthly fee based on the number of users that connect to Insider during the Term.
Datanyze shall at all times retain full right and ownership of the information and content that is being served by the Service. By entering into this Agreement Client
affirms that such action will not violate any applicable contract, policy, law or regulation to which the Client is currently subject.
Client grants Datanyze the right to use the Client's logo. Datanyze may not modify or change the logo in any way and the logo may only be used for purposes of identifying Client as a Datanyze customer. The logo shall not be used in any manner, which may be considered, in Client's sole discretion, disparaging or negative. Client has the right to revoke the license to use logo at any time in its sole discretion.
If Salesforce Integration is included in Client's Service as defined in Service Purchase Letter, Datanyze, at its sole expense, shall integrate data from the Reports into Client's Salesforce organization (i.e. account or database) in a customized form specified by Client.
Client shall pay Datanyze the Service fee in accordance with the terms of this Agreement. All payments must be made in U.S. dollars and, when paid, are non-cancelable, non-contingent and non-refundable, except as otherwise provided herein.
If Client chooses to make payment by credit card, Client shall grant permission to Datanyze to charge Client's credit card until Datanyze or Client terminates the Service.
Datanyze is not responsible for any additional bank fees, interest charges, finance charges, over draft charges, or other fees resulting from charges billed by Datanyze. All fees are exclusive of taxes, levies, or duties, imposed by taxing authorities, including, for example, value-added, sales, use or withholding taxes, and Client shall be responsible for payment of all applicable such taxes, levies, or duties (excluding taxes based on Datanyze’s income), even if such amounts are not listed in an Agreement except to the extent Client has provided Datanyze with a valid tax exemption or direct pay certificate that exempts Client from such payment. Client shall reimburse Datanyze for any taxes paid on behalf of Client.
Unless the Agreement expressly states other payment terms, payment is due upon receipt of invoice by Client. Any amounts invoiced that are not received by Datanyze by the due date are considered delinquent, at which time services will become subject to suspension. Client is responsible for providing complete and accurate billing and contact information to Datanyze and notifying Datanyze of any changes to such information
In the event any payment is past due, Datanyze may, at its reasonable discretion, (i) apply a late charge equal to the lesser of 1% per month on the unpaid balance or the highest rate permitted by applicable law; (ii) require Client to provide a service deposit to guarantee payment for the Services equal to the value of the monthly service fee; and/or (iii) take any action in connection with any other right or remedy Datanyze has under this Agreement, at law or in equity.
The pricing of the Service by Datanyze, both for its elements and in the aggregate is Datanyze's Confidential Information (as hereinafter defined). Any information that is part of Client's Salesforce organization is Client's Confidential Information. Unauthorized disclosure of the other party's Confidential Information shall constitute a breach of the terms of this Agreement.
Client may terminate the Services, pursuant to the terms of this Section 8, by contacting Datanyze at firstname.lastname@example.org
Either Party may terminate this Agreement for cause by delivering written notice to the other Party upon the occurrence of any of the following events: (a) a receiver is appointed for the other Party or its property; (b) the other Party makes a general assignment for the benefit of its creditors; (c) the other Party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor's relief law which proceedings are not dismissed within 60 days; (d) the other Party is liquidated or dissolved; (e) the other Party ceases to do business or otherwise terminates its business operations; or (f) the other Party defaults or fails to perform any material obligation hereunder in any material respect, which default or failure is not cured within thirty (30) days after written notice thereof from the non-defaulting Party stating its intention to terminate this Agreement by reason thereof. In the event that Client terminates this Agreement in accordance with this Section 8.1, Datanyze shall issue to Client a prorated refund of all prepaid fees for services not rendered.
Datanyze may, subject to the terms of this Section 8.2, suspend the Service or terminate this Agreement, effective upon notice, should Client's use of the Service, content, or transmitted or transferred material directly or indirectly, actually or allegedly (a) violate any United States, state, local or other applicable law, regulation, rule or order of any applicable regulatory authority or court of competent jurisdiction, (b) be used for or involved in any defamatory, threatening or obscene purpose or in violation of any U.S. community standard. Additionally, Datanyze may terminate this Agreement, effective upon notice, should Datanyze determine in its good faith discretion that Client is engaged in activities competitive with any current or contemplated business plans of Datanyze, or if Datanyze determines in its good faith discretion that its current or contemplated business plans may be competitive with Client. Further, if at any time Datanyze, in its reasonable judgment, the Service, or any portion thereof, or Client’s use thereof may violate any applicable law or regulation, any contractual rights owed to any third party or any intellectual property rights of a third party, Datanyze shall have the right to terminate that portion of the Services implicating the legal or contractual violation. In the event that Datanyze terminates this Agreement in accordance with this Section 8.2, other than in the event of circumstances set forth in (a) or (b), above, Datanyze shall issue to Client a prorated refund of all prepaid fees for services not rendered, provided that: (x) Client requests such refund in writing within fifteen (15) days of the termination of the Agreement; and (y) to the extent Datanyze only terminates a portion of the Services, the right to a refund shall only apply if the portion of the Services terminated was material.
This Agreement may be terminated by Client without cause at any time prior the expiration term of the Agreement ("Early Termination"). In the event of such Early Termination by Client, total fees for the remainder of the term as specified in the attached Service Purchase Letter shall immediately become due and payable by the Client.
In the event Client fails to pay any fees or charges within thirty (30) days of the invoice date, and Client fails to cure such non-payment within fifteen (15) days of receiving written notice from Datanyze of said non-payment, Datanyze may terminate this Agreement and/or Services, at Datanyze's sole discretion. Termination for non-payment will not relieve Client's responsibilities under this Agreement including, but not limited to, its obligation to pay fees up to the date of termination and any Early Termination Fees due and owing at the date of termination. Once payment has been made, access to the service shall be restored for the remaining term.
Upon expiration or termination, the Service shall terminate. Client shall thereafter cease all use of the Service and is required to remove and cease all use of Datanyze data collected from the Service or use of the Datanyze API from Salesforce.com, other 3rd party applications, or Client's databases.
Neither this Agreement nor the parties' business relationship established hereunder will be construed as a partnership, joint venture or agency relationship or as granting a franchise. Neither Party will attempt to, or will have the right to, legally obligate the other Party.
Except for those warranties expressly made hereunder, Datanyze expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose, non-infringement, or results to be obtained by partner in connection with the use of the Services. Provided Client has not otherwise violated this Terms of Service, including Section 3 hereof, Datanyze represents and warrants that services provided to Client will not infringe the intellectual property rights of either party or third parties, or violate any applicable law or regulation.
Neither party shall be liable to each other or any entity claiming through or under the other party, whether as a result of single or multiple claims, for any loss of profit or income or any consequential, incidental, special, punitive, or indirect damages, whether in an action for contract or tort, in connection with this agreement, even if the applicable party has been advised of the possibility of such damages. Furthermore, excluding claims for willful misconduct, or fraud, in no event shall either party's total liability for any cause of action, claims, damages, fees or expenses exceed, in the aggregate, the amount of fees paid by Client in the twelve (12) months prior to the date the cause of action arose.
During the term and for a period of three years after the expiration or termination of this Agreement, neither party will disclose the other's Confidential Information without the other's written consent except (a) to obtain advice from legal or financial consultants, or (b) if compelled by law, in which case the disclosing party will use commercially reasonable efforts to give the other party notice of the requirement so the disclosure can be contested. Each party will take reasonable precautions to safeguard the other's Confidential Information, which will be at least as great as those the party takes to protect its own Confidential Information, but in no event less than reasonable care. Each party will disclose the other's Confidential Information to its employees, agents, representatives and consultants (each, a "Representative") only on a need-to-know basis and subject to reasonable confidentiality obligations upon such persons. When Confidential Information is no longer necessary to perform any obligation under this Agreement, each party will return it to the other or destroy it at the other's request. "Confidential Information" means information marked or otherwise identified in writing by a party as proprietary or confidential or that, under the circumstances surrounding the disclosure, ought reasonably be known to constitute proprietary or confidential information. Confidential Information of Datanyze includes, but is not limited to, non-public information regarding the operation of the Service and the terms of this Service Agreement. Confidential Information does not include information which: (a) the recipient developed independently; (b) the recipient rightfully knew before receiving it from the disclosing party; or (c) is or subsequently becomes publicly available or is received from another source, in both cases other than by a breach of an obligation of confidentiality.
The laws of the United States and, specifically, those of the state of California, without regard to principles of conflict of laws, will govern this Agreement and any dispute of any sort that might arise between Client and Datanyze or its affiliates. Any dispute or claim arising out of or in connection with this Agreement shall be adjudicated in Santa Clara County, California. Notwithstanding any provisions herein, Datanyze may seek injunctive relief in any court of competent jurisdiction.
Certain portions of this Section are deemed to be a "written agreement for arbitration" pursuant to the Federal Arbitration Act. Client and Datanyze agree that they intend that this Section satisfies the "writing" requirement of the Federal Arbitration Act.
If any controversy, allegation, or claim arises out of or relates to the Services, the Website, or this Agreement, then either Client or Datanyze may elect to submit the Dispute to be finally and exclusively resolved by binding arbitration before a sole arbitrator in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association. If an in-person arbitration hearing is required, then it will be conducted in Santa Clara County, California.
In any action/arbitration brought under this agreement, the prevailing party will be entitled to recover its costs and reasonable attorneys' fees and all other litigation
costs, including expert witness fees, and all reasonable attorneys' fees and costs incurred in connection with the enforcement of a judgment arising from any action or proceeding.
All notices given in accordance with the provisions of this Agreement shall be in writing and sent by first class mail or email, to the addresses indicated in the attached Service Purchase Letter, or such other address as either party may indicate by at least ten (10) days prior written notice to the other party.
The Parties agree to receive electronic documents and accept electronic signatures (information attached or logically associated with such document and clicked or otherwise adopted with an intent to sign) including in counterparts which shall be valid substitutes for paper-based documents and signatures, and the legal validity of a transaction will not be denied on the ground that it is not in writing.
Any notices to Datanyze must be sent to:
4 W 4th Ave
San Mateo, CA 94402
This Agreement may be modified only (i) by obtaining our written consent in an agreement signed by an officer of Datanyze; or (ii) as set forth below in the immediately following paragraph.
Client agrees that Datanyze may modify the terms of this Agreement or any policy governing the Services from time to time, and that your right to access the Services is conditioned on an ongoing basis with your compliance with the then-current version of this Agreement. We will notify you of any material revisions or modifications to the Agreement by (i) posting a notice on the Website for 30 days following any revisions or modifications to this Agreement, or (ii) posting a notice on the Website the first time that you visit the Website following such revisions or modifications or (iii) providing direct notice of such changes in a communication to your client account. By continuing to use the Services following receipt of such notice, you consent to the revised or modified terms of this Agreement. Client further agrees to visit the Website at least once every 30 days to review any notices of revisions or modifications to this Agreement.
If any term of this Agreement is, for any reason, held to be invalid, unenforceable, or contrary to public policy, law, statute and/or ordinance, then the remainder of this Agreement shall not be affected by such determination and shall remain valid and fully enforceable.
A failure by any Party to enforce any term of this Agreement upon its breach does not waive enforcement of the term that was violated, nor does it waive enforcement of any other term of this Agreement. To be effective, any waiver of rights under this Agreement must be in writing and signed by the Party waiving such right(s).
This Agreement may be executed in one or more separate counterparts, each of which, when executed, shall be deemed an original and shall together constitute one Agreement, which may be sufficiently evidenced by any one counterpart, and each of which shall be fully effective against all persons executing or claiming under this Agreement. Facsimile signatures shall have the same force and effect as original signatures.
The captions of this Agreement are solely for convenience of the Parties, do not comprise any part of this Agreement, and shall not be used to interpret or determine the validity of any provision in it.
This Agreement is the final, complete, and exclusive Agreement concerning its subject matter, superseding any prior or contemporaneous written or oral agreements. There are no other representations, warranties, agreements or undertakings, written or oral, between or among the Parties to this Agreement, or those released in it, that are not fully expressed in this writing.
Client agrees to provide written notice to Datanyze of any event effecting a Change of Control of Client within 15 days of such Change of Control. Either party shall have the right to assign its rights and obligations, without the consent of the other party, but subject to the provision of written notice, in connection with the transfer or sale of all or substantially all of its business related to this Agreement, or in the event of its merger, consolidation, change in control or similar transaction (collectively, a “Change of Control”). Any permitted assignee shall assume all assigned obligations of its assignor under this Agreement. Datanyze shall have the right to terminate this Agreement upon a Change of Control with respect to Client with 15 days written notice.
This Terms of Service is effective as of February 15, 2017.
Subject to the terms and conditions of this Addendum, Datanyze grants to Developer a limited, non-exclusive, non-transferable, license to: (i) internally use the API Key to access the API, (ii) internally use, perform, display, reproduce the API solely as necessary to develop, maintain and support the Developer App, in accordance with the specifications included in the API; (iii) provided that the Developer App complies with all requirements in this Agreement, reproduce and distribute copies of the API (in its original form or as modified), in executable code form only, solely as incorporated into the Developer App to End Users pursuant to a binding written agreement.
Developer acknowledges that the API and its structure, organization, and source code constitute valuable trade secrets of Datanyze. Developer agrees not to disclose, distribute, sublicense, lease, rent, loan, resell or otherwise transfer the data received from the Service or API, the Service or API (other than those elements incorporated into the Developer App) or the API Key to any third party. Developer must reproduce, on all copies made by or for Developer, and must not remove, alter, or obscure in any way all proprietary rights notices (including copyright notices) of Datanyze on or within the copies of the API. Developer will immediately notify Datanyze if Developer becomes aware of any material breach relating to the API.
Developer is solely responsible and liable for the Developer App. Developer is solely responsible for supporting the Developer App. The Developer App must comply with the following (the "App Policy"): the Developer App may not (i) violate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) violate any laws or regulations (including any privacy laws) or any obligations or restrictions imposed by any third party; (iii) be unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another's privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, or patently offensive, or promote racism, bigotry, hatred, or physical harm of any kind against any group or individual, or be otherwise objectionable; (iv) be harmful to minors in any way; (v) contain any computer viruses, worms, or any software intended to damage or alter a computer system or data; (vi) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise.
"Confidential Information" includes the API Key and API and any other materials of Datanyze that Datanyze designates as confidential or which Developer should reasonably believe to be confidential. Developer shall hold Datanyze's Confidential Information in confidence and shall neither disclose such Confidential Information to third parties nor use Datanyze's Confidential Information for any purpose other than as necessary to perform under this Addendum. Developer agrees to limit access to the Confidential Information to those employees, agents, and representatives who are necessary for Developer to perform its obligations under this Addendum. All such employees, agents, and representatives must have a written confidentiality agreement with Developer that is no less restrictive than the terms contained herein. Developer will protect the Confidential Information from unauthorized use, access, or disclosure in the same manner as Developer protects its own confidential or proprietary information of a similar nature and with no less than reasonable care. The foregoing restrictions on disclosure shall not apply to Confidential Information that is (a) already known by Developer; (b) becomes, through no act or fault of Developer, publicly known; (c) received by Developer from a third party without a restriction on disclosure or use; or (d) independently developed by Developer without reference to Datanyze's Confidential Information.
This Addendum will remain in effect until the Developer's subscription has expired or it has been terminated.
Last Updated: February 15, 2017