Terms of Service Last Updated: July 19, 2019
If a valid Prior Agreement (defined below) exists between Customer and Canvs, the Prior Agreement takes precedence over these Terms unless specifically superseded via a Service Order (see Section 8.9 for further details).
These Terms of Service (these “Terms”) govern transactions by which Customer (as defined below) procures certain rights to the Service (as defined below) from Mashwork, Inc. d/b/a Canvs (“Canvs”) with offices at 85 Broad Street, 27th Floor, New York, NY 10004.
By accepting these Terms, either by clicking a box indicating your acceptance, executing a Service Order or other document that references these Terms, by using (or making any payment for) the Service, or by otherwise affirmatively indicating your acceptance of these Terms, you: (i) agree to these Terms on behalf of Customer; and (ii) represent that you have the authority to bind Customer to these Terms. If you do not have such authority, or if you (or Customer) do not agree with these Terms, you must not accept these Terms and may not use the Service. These Terms can be changed by Canvs at any time. Canvs will provide Customer with notice of any material changes to these Terms. Customer’s continued use of the Service after the modification of these Terms means that Customer accepts all such changes. Customer should consult these Terms each time Customer accesses the Service to view any changes. These Terms were last modified as of the date indicated above.Additional terms and details specific to each transaction (e.g., pricing, functionality of the Service that is procured, etc.) may be specified in a Service Order (as defined below). These Terms together with any Service Order(s) constitute the “Agreement” by and between Canvs and Customer. The parties agree as follows:
1.1 “Authorized User” means you (if there are no Service Orders) or the Customer employees for whom Customer has paid all applicable fees to permit them to access the Service.
1.2 “Confidential Information” means any information disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects (including without limitation documents, prototypes, samples, plant and equipment), which (i) is designated as “Confidential,” “Proprietary” or some similar designation at the time of disclosure, (ii) is customarily considered confidential between business parties, or (iii) which should reasonably be understood to be confidential based on the nature of the information and the circumstances of the disclosure. Confidential Information may include information disclosed to a disclosing party by third parties. Canvs’ Confidential Information includes, but is not limited to, these Terms, any addenda hereto signed by both parties, the Service, any responses to technical support requests, and any business information, technical data, or know-how relating to the Service, any services, or any associated technology or services, including without limitation all such information disclosed in written form. Confidential Information will not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s files and records immediately prior to the time of disclosure; (iv) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession.
1.3 “Customer” means the organization, company, or other legal entity specifically identified as the “Customer” in the applicable Service Order or, if there are no Service Orders or no such entity is specified, the organization, company, or other legal entity for which the individual indicating agreement to these Terms acts.
1.4 “Customer Data” means any data that is uploaded to the Service by Customer.
1.5 “Effective Date” means the date you first access or use the Service (if there are no Service Orders) or the effective date of the first Service Order entered into between the parties.
1.7 “Service” means Canvs’ web-based platform provided by Canvs to Customer under these Terms as may be set forth in a Service Order.
1.8 “Service Order” means an ordering document (e.g., purchase order, statement of work, service order, etc.), or online order specifying the details of the Service to be provided hereunder that is mutually agreed to between Customer and Canvs, including any addenda and supplements thereto, or that is presented to Customer by Canvs within the Service (or otherwise by Canvs’ third-party service providers) and accepted by Customer.
1.9 “Service Order Term” means the term of a Service Order, as specified in the applicable Service Order.
2. Access to Service.
2.1 Grant. Subject to these Terms, Canvs hereby grants to Customer a non-exclusive, non-sublicenseable, revocable, and non-transferable right during the applicable Term (or the Service Order Term, if applicable) to access and use the Service by and through its Authorized Users for Customer’s internal business purposes and in accordance with any scope limitations identified in any applicable Service Order.
2.2 Reservation of Rights. Customer acknowledges that it is only granted access to the Service during the Term (or the applicable Service Order Term) in accordance with Section 2.1 and agrees that it will not use the Service except as permitted under Section 2.1. Customer acknowledges that Canvs and its licensors retain title to the Service. Canvs and its licensors hereby reserve all rights to the Service and any copyrights, patents, trademarks or other intellectual property rights embodied or used in connection therewith, except for the rights expressly granted herein.
2.3 Additional Restrictions. Except as explicitly set forth in these Terms, Customer will not itself, or through any parent, subsidiary, affiliate, agent or other third party: (a) transfer, distribute, sell, lease, license or sublicense access to the Service or any part thereof; (b) attempt to decompile, disassemble, or reverse engineer the Service or any part thereof, in whole or in part; (c) allow access to the Service by any person other than an Authorized User; (d) write or develop any derivative software or any other software program based upon the Service or any part thereof or any Confidential Information; (e) use the Service or any part thereof to provide processing services to third parties, or otherwise use the Service or any part thereof on a ‘service bureau’ basis; or (f) provide, disclose, divulge or make available to, or permit use of the Service or any part thereof by any third party without Canvs’s prior written consent.
2.4 Authorized Users. Customer acknowledges and agrees that it is responsible for all use or misuse of the Service by its Authorized Users, and a breach by any such Authorized User of these Terms will be deemed a breach of Customer under these Terms. As between the parties, Customer agrees that is responsible for notifying and obtaining the agreement of such Authorized Users to the restrictions with respect to the Service. Each Service account login provided to an Authorized User is personal to that specific individual and may not be transferred, sold or otherwise assigned to or shared with any other individual or entity. Customer will notify Canvs if Customer wishes to add Authorized Users; Customer may accept or deny such request in its sole discretion. If Canvs accepts Customer’s request to add Authorized Users, the parties will amend the applicable Service Order to include the name of such Authorized User.
2.5 Feedback. If Customer provides to Canvs (either on its own accord or at the request of Canvs) feedback, analysis, suggestions and comments (including, but not limited to, bug reports and test results, and design suggestions or ideas) related to the Service (collectively, “Feedback”) Customer hereby assigns to Canvs all right, title and interest in and to any such Feedback to Canvs and acknowledges that Canvs is free to use the Feedback without payment or restriction.
2.6 Customer Data. Customer owns all right, title, and interest in all Customer Data. Except as expressly provided in this Section 2.6, (a) all such Customer Data are deemed Confidential Information of Customer, and (b) will not be utilized by Canvs for any purpose other than to perform its obligations under these Terms. Customer hereby grants to Canvs a non-exclusive, worldwide, royalty-free, fully paid up, sublicensable (directly and indirectly), transferrable, perpetual and irrevocable license to anonymize and/or aggregate the Customer Data and use such anonymized and/or aggregated data (“Usage Data”) for Canvs’ business purposes, including but not limited to deriving statistical, usage data, and other data related to the functionality of the Service, improving the Service, developing and making available other products and services, and sharing such data with our affiliates and business partners. Canvs shall own all right, title and interest in Usage Data.
2.7 Social Data. This Section 2.7 will only apply if Customer is purchasing the Canvs Twitter TV product. Customer will not reference, disclose or make any portion of the information available through the Canvs Twitter TV functionality available to Rentrak, comScore, or any social listening companies. Customer’s use of Twitter Content (as defined in the following online terms) provided (directly or indirectly) by Twitter, Inc. (“Twitter”), if applicable, are subject to and governed by the terms and restrictions applicable to use of such Twitter Content as the same may be updated by Twitter from time to time, a current copy of which is found at: https://developer.twitter.com/en/developer-terms/agreement-and-policy and, solely to the extent you have been granted a license to display Twitter Content herein, the display requirements located at https://about.twitter.com/company/display-requirements. Further, as part of Customer’s access to Twitter Content under these Terms, the parties hereby agree that Twitter is the licensor of the Twitter Content, is as an express third-party beneficiary of these Terms, is entitled to enforce the terms, conditions and restrictions regarding the use of the Twitter Content against Customer, and is further entitled to preliminary or injunctive relief if Customer breaches or otherwise violates these Terms.
3. Subscription Fee.
3.1 Payment of Fees. This Section 3.1 will only apply if there are any Service Orders under these Terms. In consideration of the access granted pursuant to Section 2.1, Customer will pay Canvs the fees set forth in each Service Order in accordance with the payment terms set forth therein. Unless otherwise set forth in a Service Order, all invoices are due net 30 days from the date of the applicable invoice. Any amounts not paid when due will be subject to interest of 1.5% per month, which interest will be immediately due and payable.
3.2 Taxes. All charges and fees provided for in these Terms are exclusive of any taxes, duties, or similar charges imposed by any government. Customer will pay or reimburse Canvs for all federal, state, dominion, provincial, or local sales, use, personal property, excise or other taxes, fees, or duties arising out of these Terms or the transactions contemplated by these Terms (other than taxes on the net income of Canvs).
4. Disclaimer; Limitation on Liability.
4.1 Representations and Warranties. Each party hereby represents and warrants to the other party that: (a) it is duly organized and validly existing under the laws of the state of its incorporation and has full corporate power and authority, and is duly authorized, to enter into the Agreement and to carry out the provisions thereof; (b) the person executing the Agreement on behalf of the party is authorized to do so; (c) the execution, delivery and performance of the Agreement by such party does not violate any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound, nor violate any law or regulation of any court, governmental body or administrative or other agency having jurisdiction over it; and (d) such party will comply with all applicable federal, state and local laws, rules and regulations in fulfilling its obligations hereunder. Canvs represents and warrants to Customer that the Service and the use of the Service as contemplated by these Terms does not and will not infringe, violate, or misappropriate 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. Customer represents and warrants to Canvs that Customer Data and the use of Customer Data as contemplated by these Terms does not and will not: (A) infringe, violate, or misappropriate 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; or (B) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person.
4.2 Disclaimer. EXCEPT AS SET FORTH IN SECTION 4.1 ABOVE, CANVS MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY REGARDING OR RELATING TO THE SERVICE, OR ANY MATERIALS OR SERVICES FURNISHED OR PROVIDED TO CUSTOMER UNDER THESE TERMS. CANVS HEREBY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICE AND ANY OTHER MATERIALS AND SERVICES, AND WITH RESPECT TO THE USE OF ANY OF THE FOREGOING. CANVS DOES NOT WARRANT THAT THE SERVICE IS ERROR-FREE OR THAT OPERATION OF THE SERVICE WILL BE SECURE OR UNINTERRUPTED. CANVS DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE SERVICE IS ACCURATE OR COMPLETE OR THAT ANY INFORMATION PROVIDED THROUGH THE SERVICE WILL ALWAYS BE AVAILABLE. CANVS EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF CUSTOMER’S USE OF THE SERVICE.4.3 Limitation of Liability. IN NO EVENT WILL CANVS OR ITS LICENSORS (THE “CANVS PARTIES”) BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THESE TERMS OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY THEORY OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY: (A) FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF COVER OR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE, OR USE OF THE SERVICE, OR (B) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE GREATER OF (1) FEES PAID BY CUSTOMER TO CANVS FOR ACCESS TO THE SERVICE UNDER THIS THE APPLICABLE SERVICE ORDER RELEVANT TO THE CLAIM IN THE SIX MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY; AND (2) $100; IN EACH CASE, WHETHER OR NOT CANVS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Each provision of these Terms that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is to allocate the risks of these Terms between the parties. This allocation is reflected in the pricing offered by Canvs to Customer and is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of these Terms, and will apply notwithstanding the failure of essential purpose of any limited remedy in these Terms.
5.1 Canvs Indemnity. Canvs will, at its expense, defend or settle any claim, action, or allegation brought against Customer that the Service infringes any copyright or trade secret of any third party and will pay any final judgments awarded or settlements entered into; provided that Customer (i) gives prompt written notice to Canvs of any such claim, action, or allegation of infringement, (ii) gives Canvs the assistance, authority, and information as Canvs may reasonably require to settle or oppose such claims, and (iii) gives Canvs the authority to proceed as contemplated herein. Canvs will have the exclusive right to defend any such claim, action, or allegation and make settlements thereof at its own discretion, and Customer may not settle or compromise such claim, action, or allegation, except with prior written consent of Canvs.
5.2 Options. In the event any such claim, action, or allegation of infringement is brought or threatened, Canvs may, at its sole option and expense: (a) procure for Customer the right to continue use of the Service or infringing part thereof; or (b) modify or amend the Service or infringing part thereof, or replace the Service or infringing part thereof with other software having substantially the same or better capabilities; or, (c) if neither of the foregoing is commercially practicable, terminate these Terms and repay to Customer a pro rata portion, if any, of any pre-paid and unused subscription fees. Canvs and Customer will then be released from any further obligation to the other under these Terms, except for the obligations of indemnification provided for above and such other obligations that survive termination.
5.3 Exclusions. Canvs will have no liability hereunder if the actual or alleged infringement results from (a) Customer’s breach of these Terms, (b) any modification, alteration or addition made to the Service or any use thereof, including any combination of the Service with software or other materials not provided by Canvs, (c) Customer’s failure to use any corrections or modifications made available by Canvs that would not result in any material loss of functionality, (d) use of the Service in a manner or in connection with a product or data not contemplated by these Terms, or (e) any settlements entered into by Customer or costs incurred by Customer for such claim that are not pre-approved by Canvs in writing.
5.4 Limitation. THIS SECTION 5 STATES THE ENTIRE LIABILITY OF CANVS WITH RESPECT TO INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET, OR OTHER PROPRIETARY RIGHT.
5.5 Customer Indemnity. Customer will, at its expense, defend or settle any claim, action, or allegation brought against Canvs that arises out of or relates to a breach by Customer of any warranties in Section 4.1 that relate to Customer Data; provided that Canvs (i) gives prompt written notice to Customer of any such claim, action, or allegation of infringement, (ii) gives Customer the assistance, authority, and information as Customer may reasonably require to settle or oppose such claims, and (iii) gives Customer the authority to proceed as contemplated herein. Customer will have the exclusive right to defend any such claim, action, or allegation and make settlements thereof at its own discretion, and Canvs may not settle or compromise such claim, action, or allegation, except with prior written consent of Customer.
6.1 Non-Use and Non-Disclosure. Each party agrees not to use any Confidential Information of the other party for any purpose except to exercise its rights and perform its obligations under these Terms. Each party agrees not to disclose any Confidential Information of the other party to third parties or to such party’s employees who do not have a need to know. Notwithstanding, a receiving party may disclose such Confidential Information that is required by law to be disclosed if the receiving party gives the disclosing party prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure. Neither party will reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the other party’s Confidential Information and which are provided to the party hereunder.
6.3 Return of Materials. Upon the termination or expiration of these Terms, each party will either return to the other party or destroy all of the other party’s Confidential Information that such party may have in its possession or control.
7. Term and Termination.
7.1 Term. These Terms will take effect on the Effective Date and will continue in effect for the term specified upon registration or until otherwise terminated as provided herein (the “Term”). If there are no outstanding Service Orders, either party can terminate these Terms for any reason upon 30 days written notice to the other.
7.2 Termination Events. Canvs may, by written notice to Customer, terminate these Terms, a Service Order, or both upon notice if any of the following events (“Termination Events”) occur: (a) Customer breaches any of the following Sections: 2.1 – 2.3, or 2.7; (b) Canvs is or will become unable for any reason beyond its control to perform its obligations hereunder (e.g., if a third-party licensor terminates its agreement with Canvs); or (c) Customer (i) terminates or suspends its business, or (ii) becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority.In addition to the foregoing termination rights, in the event of any material breach of these Terms by either party that remains uncured by the breaching party ten business days following receipt of notice of the breach, the non-breaching party may immediately terminate these Terms by providing written notice of termination, provided that any breach caused by a party’s willful misconduct shall not be granted a cure period.If these Terms are terminated as set forth in this Section 7.2, termination will become effective immediately or on the date set forth in the written notice of termination.
7.3 Survival and Termination Obligations. Termination of a Service Order does not result in termination of these Terms or any other Service Orders not specifically terminated. Termination of these Terms results in automatic termination of all Service Orders. Upon expiration or termination of these Terms or a Service Order, Customer will immediately cease all access to and use of the Service (or the access to and use of the Service specified in that Service Order, as applicable), purge and destroy all copies, portions, and excerpts of the Service in its possession and any related documentation, and provide certification of destruction to Canvs. Sections 1, 2.2-2.7, 3 (to the extent any fees are due as of the effective date of termination), 4, 5, 6, 7.3 and 8 will survive any termination or expiration of these Terms or a Service Order.
8.1 Governing Law. These Terms will be governed by the laws of the United States and the State of New York, without reference to conflict of laws principles. Any dispute between the parties regarding these Terms will be subject to the exclusive venue of the state and federal courts in New York County, New York. The parties hereby consent to the exclusive jurisdiction and venue of such courts.
8.2 Assignment. Neither these Terms nor any rights under these Terms may be assigned or otherwise transferred by either party, in whole or in part, whether voluntarily or by operation of law, without the other party’s prior written consent; except either party may assign or transfer these Terms to an affiliate or successor in the event of a merger, sale, or acquisition of all or substantially all of such party’s assets or stock without the prior written consent of the other party. Subject to the foregoing, these Terms will be binding upon and will inure to the benefit of the parties and their respective successors and assigns. Any assignment in violation of this Section 8.2 will be null and void.
8.3 Notices. Any notice required or permitted under these Terms or required by law must be in writing and must be (a) delivered in person, (b) sent by first class registered mail, or air mail, as appropriate, (c) sent via electronic mail, or (d) sent by overnight air courier, in each case properly posted and fully prepaid to the appropriate address. Either party may change its address for notice by notice to the other party given in accordance with this Section. Notices will be considered to have been given at the time of actual delivery in person, three business days after deposit in the mail, one business day after sending via electronic mail, or one day after delivery to an overnight air courier service.
8.4 Limitation on Claims. No action arising out of any breach or claimed breach of these Terms or transactions contemplated by these Terms may be brought by either party more than one year after the cause of action has accrued. For purposes of these Terms, a cause of action will be deemed to have accrued when a party knew or reasonably should have known of the breach or claimed breach.
8.5 No Warranties. No employee, agent, representative or affiliate of Canvs has authority to bind Canvs to any oral representations or warranty concerning the Service. Any written representation or warranty not expressly contained in these Terms will not be enforceable.
8.6 Force Majeure. Neither party will incur any liability to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of the parties. Such events, occurrences, or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, earthquake, fire and explosions.
8.7 Waiver. Any waiver of the provisions of these Terms or of a party’s rights or remedies under these Terms must be in writing to be effective. Failure, neglect, or delay by a party to enforce these Terms or its rights or remedies at any time, will not be construed and will not be deemed to be a waiver of such party’s rights under these Terms and will not in any way affect the validity of the whole or any part of these Terms or prejudice such party’s right to take subsequent action. No exercise or enforcement by either party of any right or remedy under these Terms will preclude the enforcement by such party of any other right or remedy under these Terms or that such party is entitled by law to enforce.
8.8 Severability. If any term, condition, or provision in these Terms is found to be invalid, unlawful or unenforceable to any extent, the parties will endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in these Terms. If the parties fail to agree on such an amendment, such invalid term, condition, or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
8.9 Integration. If Customer and Canvs have previously negotiated and fully executed an agreement for the provision of the Service (“Prior Agreement”), such Prior Agreement is not affected by these Terms unless specifically provided otherwise in a Service Order. Subject to the foregoing, these Terms (including any Service Orders) contain the entire agreement of the parties with respect to the subject matter of these Terms and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to said subject matter. These Terms may not be amended, except by a writing signed by both parties.
8.10 Export. Customer acknowledges that the Service may contain features subject to United States and local country laws governing import, export, distribution and use. Customer is responsible for compliance by the Customer and its Authorized Users with United States and local country laws and regulations and will not export, use or transmit the Service (i) in violation of any export control laws of the United States or any other country, or (ii) to anyone on the United States Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Order.
8.11 U.S. Government Restricted Rights. If the Service is accessed or used by any agency or other part of the U.S. Government, the U.S. Government acknowledges that Canvs provides the Service, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Service include only those rights customarily provided to the public as defined in these Terms. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these Terms, it must negotiate with Canvs to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
8.12 Publicity. With Customer’s prior written consent, Canvs may identify Customer and use Customer’s logo and trademarks (collectively, the “Marks”) on Canvs’ website and in marketing materials to identify Customer as a user of the Service, and if Customer consents, Customer grants Canvs a non-exclusive, revocable, royalty-free license to do so on Canvs’ website or in any media now or later developed in connection with any marketing, promotion or advertising of Canvs or the Service. Any goodwill that accrues from Canvs’ use of Customer’s Marks here under will inure solely to Customer.*********************************************************