OnCue Terms of Service
Note that OnCue Subscriptions offered online currently referred to as “Beta”, “Basic”, “Small”, “Medium” and “Large” can be used by websites with an average of fewer than 4,000,000 Page Views per month. Websites with a higher number of Page Views must contact OnCue directly to facilitate this level of website activity and require a customized “Enterprise” Subscription.
- “OnCue Tag” refers to the tag which is placed on every page deemed necessary throughout the client website.
- “Account” refers to the billing account for the Service and the collection of settings and data for a website or a set of websites. There can be multiple Accounts per User Profile.
- “Customer Data” means the data concerning the characteristics and activities of visitors to your website that is collected through use of the OnCue Tag and the Servers.
- “Documentation” means any accompanying proprietary documentation made available to you by OnCue for use with the Software, including any documentation available online or otherwise.
- “Page View” is a unit of measurement for usage of the Service. A Page View is counted when the OnCue Tag is executed on a web page accessed by a visitor, and processed.
- “Processing Software” refers to the OnCue software which manages your online research.
- “Report” means the resulting analysis shown at www.OnCueresearch.com (or such other URL OnCue may provide from time to time) including stored Page Views and Customer Data.
- “Servers” mean the servers controlled by OnCue upon which the Processing Software and Customer Data are stored.
- “Software” means the OnCue Tag and the Processing Software.
- “Subscription” means the specific Customer Data, Page Views and billing terms agreed upon for your Account, between you and OnCue, your hosting supplier.
- “User Profile” is the collection of accounts that a user can access and manage.
- “Derivative Work” means as revision, modification, translation, abridgement, condensation, or expansion of a computer program or any other form in which the program may be recast, transferred or adapted, which if prepared without consent of Licensor, would constitute a copyright infringement.
2. USER PROFILE, PASSWORD, AND SECURITY.
To register for the Service, you must complete the registration process by providing OnCue with current, complete and accurate information as prompted by the registration form, including your e-mail address (username) and password. You will at all times be responsible for maintaining the security of your account and password: you should protect your passwords and are fully responsible for your own and third party use of your accounts. OnCue cannot and will not be liable for any loss and/or damage resulting from your failure to comply with this security obligation. You may not use the Service for any illegal or unauthorized purpose, nor violate any applicable laws (including but not limited to copyright laws). You are solely responsible for any and all activities that relate to your Account. You agree to notify OnCue immediately upon learning of any unauthorized use of your Account or any other breach of security. You agree to provide the OnCue support and/or sales staff with your explicit agreement via the Account Info section or via email to log in to the Service under your customer password in order to maintain or improve the Service, including providing you with assistance on technical or billing issues.
Alternatively you may register using your Google account credentials. This may be used to manage your User Profile and the authentication thereof. You are responsible for maintaining the security of your User Profile and account information
3. NON EXCLUSIVE LICENSE.
OnCue hereby grants you a limited, revocable, non-exclusive, non-transferable, non-assignable, non-sublicensable license to install and use the Software solely as necessary to use the Service for one or more web pages on one or more websites that you own and control. Subject to the terms and conditions of this Agreement, you may remotely access, view and download your Reports stored at www.OnCueresearch.com (or such other URL OnCue may provide from time to time). Your license of, use of and access to the Software and the Service (which may include, without limitation, the Software, Documentation and Reports) is conditioned upon your compliance with the terms and conditions of the Agreement, including the following:
You will not, nor will you allow any third party to: (i) copy, modify, adapt, translate or otherwise create derivative works of the Software or the Documentation; (ii) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code of the Software; (iii) rent, lease, sublease, sell, assign or otherwise transfer rights in or to the OnCue Tag, the Processing Software, the Documentation or the Service; (iv) remove any proprietary notices or labels on the Software or placed by the Service; or (v) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service or the Software. You will use the Software, Service and Reports solely for your own internal use, and will not make the Software or Service available for timesharing, application service provider or service bureau use. You will comply with all applicable laws and regulations in your use of and access to the Documentation, Software, Service and Reports.
The license will expire immediately upon failure to comply with the terms of this Agreement. Upon such expiration, you must uninstall and destroy all originals and copies of the OnCue Tag in your possession and so certify in writing to OnCue within 5 business days of termination and cease any further use of the Service without the express written consent of OnCue.
“Confidential Information” includes any proprietary data and any other information disclosed by one party to the other in writing and marked “confidential” or disclosed orally and, within five business days, reduced to writing and marked “confidential”. Notwithstanding the foregoing, Confidential Information will not include any information that is or becomes known to the general public, which is already in the receiving party’s possession prior to disclosure by a party or which is independently developed by the receiving party without the use of Confidential Information. Neither party will use or disclose the other party’s Confidential Information without the other’s prior written consent except for the purpose of performing its obligations under this Agreement or if required by law, regulation or court order. In which case, the party being compelled to disclose Confidential Information will give the other party as much notice as is reasonably practicable prior to disclosing such information. Upon termination of this Agreement, the parties will promptly either return or destroy all Confidential Information and, upon request, provide written certification of such. You are responsible for safeguarding the confidentiality of your password(s) and username(s), and for any use or misuse of your account resulting from any third party using a password or username issued to you.
Licensee acknowledges that disclosure of the Licensor’s confidential information would cause substantial harm to Licensor that could not be remedied by the payment of damages alone. Accordingly, Licensor will be entitled to preliminary and permanent injunctive relief and other equitable relief for any breach of confidentiality.
5. INFORMATION RIGHTS.
You hereby allow OnCue to collect, store and process your Customer Data. The Customer Data may include one or more cookies that OnCue uses to differentiate between users. OnCue may examine Customer Data to provide you with technical support or to improve the Service.
All fees are paid in advance (monthly or annually) and are not refundable. You may evaluate the Service using the Free plan. Account owners will be notified each month they go over quota and Free account owners will be asked to move up to a paid subscription. Free accounts that go over quota 2 consecutive months will be automatically disabled. Paid accounts that go over quota two consecutive months will be automatically moved to the next subscription level.
We use various billing service providers. When using such provider’s services, you agree to follow and comply with the policies of such provider.
You agree to indemnify, hold harmless and defend OnCue, at your expense, from any and all third-party claims, actions, proceedings, and suits brought against OnCue or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys’ fees and other litigation expenses) incurred by OnCue or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) your breach of any term or condition of this Agreement, (ii) your use of the Service, (iii) your violations of applicable laws, rules or regulations in connection with the Service, or (iv) your Brand Features. In such a case, OnCue will provide you with written notice of such claim, suit or action. You shall cooperate as fully as reasonably required in the defense of any claim. OnCue reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.
9. THIRD PARTIES.
If you provide access to your Account or any portion thereof to any third party or use the Service to collect information on behalf of any third party (“Third Party”), whether or not you are authorized to do so by OnCue, the terms of this Section shall apply to you.
If you use the Service on behalf of any Third Party, you represent and warrant that (a) you are authorized to act on behalf of, and bind to this Agreement, that Third Party, (b) as between the Third Party and you, the Third Party owns any rights to Customer Data in the applicable account, and (c) you shall not disclose Third Party’s Customer Data to any other party without the Third Party’s consent.
You shall ensure that each Third Party is bound by and abides by the terms of this Agreement. OnCue makes no representations or warranties for the direct or indirect benefit of any Third Party. With respect to Third Parties, you shall take all measures necessary to disclaim any and all representations or warranties that may pertain to OnCue, the Service, the Software or the Reports, or use thereof. You agree to indemnify, hold harmless and defend OnCue, at your expense, against any and all third-party claims, actions, proceedings, and suits brought against OnCue or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys’ fees and other litigation expenses) incurred by OnCue, or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (a) any representations and warranties made by you concerning any aspect of the Service, the Software or Reports to Third Parties; (b) any claims made by or on behalf of any Third Party pertaining directly or indirectly to your use of the Service, the Software or Reports; (c) violations of your obligations of privacy to any Third Party; and (d) any claims with respect to acts or omissions of Third Parties in connection with the Services, the Software or Reports.
10. DISCLAIMER OF WARRANTIES.
The information and services included in or available through the Service, including the Reports, may include inaccuracies or typographical errors. Changes are periodically added to the information herein. OnCue and/or its respective suppliers may make improvements and/or changes in the Service or Software at any time, with or without notice. OnCue does not represent or warrant that the Service will be uninterrupted or error-free, that defects will be corrected, or that the Service, the Software or any other software on the Server are free of viruses or other harmful components. You specifically agree that OnCue shall not be responsible for unauthorized access to or alteration of the Customer Data or data from your Website. OnCue does not guarantee storage of Customer Data. Storage space allocated to you is subject to agreement with OnCue or the amount of available space.
OnCue does not guarantee the Service will be operable at all times or during any down time (1) caused by outages to any public Internet backbones, networks or servers, (2) caused by any failures of your equipment, systems or local access services, (3) for previously scheduled maintenance or (4) relating to events beyond OnCue’s control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where OnCue or your servers are located or co-located. Complete accuracy in all aspects of your Statistics at all times also is not guaranteed.
THE SERVICE, THE SOFTWARE AND REPORTS ARE PROVIDED “AS IS” AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY OnCue, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICE, THE SOFTWARE, THE DOCUMENTATION AND REPORTS, INCLUDING BUT NOT LIMITED TO WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR ANY PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. OnCue DOES NOT WARRANT THAT THE SERVICE, THE SOFTWARE OR REPORTS WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICE. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU.
11. LIMITATION OF LIABILITY.
OnCue WILL NOT BE LIABLE TO USER OR ANY THIRD-PARTY CLAIMANT FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA COLLECTED THROUGH THE SERVICE), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF OnCue HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION CONTAINED IN THIS PARAGRAPH SHALL APPLY REGARDLESS OF THE FAILURE OF THE EXCLUSIVE REMEDY PROVIDED IN THE FOLLOWING PARAGRAPH. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS OR EXCLUSIONS IN THIS AND THE FOREGOING PARAGRAPH MAY NOT APPLY TO YOU.
OnCue’S TOTAL CUMULATIVE LIABILITY TO YOU OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID BY YOU FOR THE SERVICE FOR 1 MONTH PRIOR TO THE OCCURRENCE OF THE EVENT(S) GIVING RISE TO THE CLAIM.
12. PROPRIETARY RIGHTS NOTICE.
The Service, which includes but is not limited to the OnCue Tag and the Software and all intellectual property rights in the Service are, and shall remain, the property of OnCue. All rights in and to the Software not expressly granted to you in this Agreement are hereby expressly reserved and retained by OnCue and its licensors without restriction, including, without limitation, OnCue right to sole ownership of the Software and Documentation logos, trademarks, trade secrets, databases, reports, and Web site.
Without limiting the generality of the foregoing, you agree not to (and not to allow any third party to): (a) assign, transfer, sublicense, distribute, or use the Service outside of the scope of the License granted herein; (b) copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, or decompile the Processing Software or otherwise attempt to discover any source code or trade secrets related to the Service; (c) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the Service for any purpose without the express written consent of OnCue; (d) register, attempt to register, or assist anyone else to register any trademark, trade name, serve marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with OnCue other than in the name of OnCue; or (e) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Service.
13. TERM and TERMINATION.
You can cancel your Account and Subscription at any time by removing the OnCue Tag from your web pages, deleting all Projects from your Account and then contacting OnCue for account cancellation. You should note that immediately following cancellation, all data will be deleted from the Servers and you will not be able to recover the deleted information once the Account is cancelled.
When you cancel your Subscription, your plan will remain active during the then current billing period, but your subscription will not thereafter be renewed. After your subscription expires, no new data processing will be completed or data collected; however, your reports and account data will be available for a 30-day period after the billing cycle, after which your data will be immediately deleted from your Account. The deleted information will not be recoverable at the end of such 30-day period.
OnCue, in its sole discretion, has the right to suspend or terminate your Account and refuse any and all current or future use of the Service. Such termination of the Service will result in the deactivation or deletion of your Account or your access to your Account, and the forfeiture and relinquishment of all Data in your Account. OnCue reserves the right to refuse service to anyone for any reason at any time.
Violation of any of the Terms of Service may result in the termination of the Service.
Upon any termination or expiration of this Agreement, OnCue will cease providing the Service, and you will uninstall and delete all copies of OnCue’s OnCue Tag from all web pages under your control and certify thereto in writing to OnCue within three (3) business days of such termination. In the event of any termination (a) you will not be entitled to any refunds of any usage fees or any other fees, and (b) any (i) outstanding balance for Service rendered through the date of termination, and (ii) other unpaid payment obligations during the remainder of the Initial Term will be immediately due and payable in full and (c) all of your historical report data will no longer be available to you unless a purchase or professional services agreement for the exchange and transfer of such data is entered into as a component of termination.
Note that your Subscription will be automatically renewed at the end of the specific Term and accordingly your Account and Subscription will stay valid (and accordingly, your obligation to pay the applicable fees will continue) until you decide to cancel your Account as stated herein above.
14. MODIFICATIONS TO TERMS OF SERVICE AND OTHER POLICIES.
OnCue reserves the right at any time and from time to time to update, modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. OnCue shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Service.
Any new features that augment or enhance the current Service, including the release of new tools and resources, shall be subject to the Terms of Service. Continued use of the Service after any such changes shall constitute your consent to such changes. You can review the most current version of the Terms of Service at any time at: http://www.OnCueresearch.com/terms. Downgrading your Service may cause the loss of Data, features, or capacity of your Account. You agree that OnCue shall not be liable for any such loss.
15. SERVICE UPGRADES AND DOWNGRADES.
You can downgrade or upgrade your subscription at any time. Subscription downgrades take effect at the end of the current billing period. Subscription upgrades take effect immediately.
16. GENERAL CONDITIONS.
Your use of the Service is at your sole risk. The Service is provided on an “as is” and “as available” basis.
Technical support will be provided to customers depending on their plan.
You must not modify, adapt or hack the Service or modify another website so as to falsely imply that it is associated with the Service, OnCue, or any other OnCue service.
You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service without the express written permission by OnCue.
You understand that the technical processing and transmission of the Service, including your Data, may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
You may not record the same domain in more than one free Account.
OnCue technical staff may instruct you, from time to time, to perform modifications to the OnCue Tag installed in your Website. You agree to cooperate and perform any required modifications.
You authorize OnCue to use your company name, logo or other applicable trademarks, at any time, for the purpose of referencing you as a customer on the OnCue Website or in other promotional marketing materials. If you do not wish to be referenced, please contact OnCue at admin@OnCueresearch.com.
17. MISCELLANEOUS; APPLICABLE LAW AND VENUE.
OnCue shall be excused from performance hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control. If any provision of this Agreement is held to be invalid or unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect. This Agreement shall be deemed to have been made in the State of Texas and shall be governed and construed in accordance with the laws of the State of Texas, exclusive of its rules governing choice of law and conflict of law. Each party agrees to submit to the exclusive and personal jurisdiction of the courts located in Dallas, TX, United States of America. Any notices to OnCue must be sent to: OnCue Research Inc., 7232 Glenview Drive, Richland Hills, Texas 76180, United States of America, via first class or air mail or overnight courier, and are deemed given upon receipt. The failure of OnCue to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. You may not assign or otherwise transfer any of your rights hereunder without OnCue’s prior written consent, and any such attempt is void. The relationship between OnCue and you is one of independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent. This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. OnCue reserves the right to amend, change these terms of service, except for the agreed upon terms of the Account and the Subscription, at any time without notice, and encourages you to periodically review them to ensure you are in compliance therewith. This agreement and the terms of the account and subscription are the complete and exclusive agreement between the parties with respect to the subject matter, superseding and replacing any and all prior agreements, communications and understandings (both written and oral) regarding such subject matter.