These terms of service (“agreement”) describe the terms and conditions on which Storyteller, provides its services to any customer accessing Storyteller’s SDK’s, the CMS, and API’s to add a Stories SDK to their iOS apps, Android apps and/or Websites, or otherwise receiving the benefit of Storyteller’s services (the “customer” or “you”). By indicating acceptance of this agreement or by otherwise using the service, the customer is entering into a legally binding agreement with Storyteller. If the customer does not agree to this agreement, the customer must not complete the sign-up process and must not use the service. If the customer or the third party on behalf of whom the customer is acting as (also, a “customer”) and Storyteller have already entered a separate agreement governing provision of Storyteller’s services that has been signed on behalf of both Storyteller and customer, then that other agreement shall apply in place of the terms herein, notwithstanding any checkbox or electronic acceptance required in order to use the service.
If any dispute or claim arises in relation to your use of Storyteller or the agreement, it shall be governed by Scots law and you shall be subject to the non-exclusive jurisdiction of the Scottish Courts.
Subject to this Agreement, Storyteller hereby grants to Customer a limited, royalty-free, non-exclusive, non-sublicensable, non-transferable (except for permitted assignments as hereinafter described) right to access and use the Service in accordance with the Documentation (as defined in Section 6.1), subject to any limitations presented to Customer during the order process (such as purchased number of Monthly Active Users and Page Views per SDK).
By entering into this Agreement, Customer represents and warrants that Customer meets the following minimum requirements (“Eligibility Requirements”):
Customer shall not (and shall not allow any third party to):
With the exception of material uploaded or created via the Service (“your content”), all copyright and other intellectual property rights in the Service and the materials in the Service are owned by us and are reserved.
The Service is owned and operated by Storyteller Software Limited trading as Storyteller registered in Scotland under registration number SC715876, with our registered office at Anderson House, 2nd Floor, Breadalbane Street, Edinburgh, Scotland, EH6 5JR. Our VAT number is 401177635.
Customer shall pay Storyteller the fees (“Fees”) pursuant to the fee schedule and Storyteller service plan chosen by Customer located here and make such payment in accordance with the instructions and schedule provided for by Storyteller.
Storyteller reserves the right to increase the Fees upon at least 30 days’ advance notice (e-mail or otherwise) to Customer; provided, however, that Fee increases will not take effect until the start of the next Renewal Subscription Term.
All amounts due hereunder are exclusive of all sales, use, excise, service, value added or other taxes, duties and charges of any kind (whether foreign, federal, state, local or other) associated with this Agreement, the Service, or Customer’s access to the Service. Customer shall be solely responsible for all such taxes, duties and charges (except for taxes imposed on Storyteller’s income), which may be invoiced by Storyteller from time-to-time.
Customer shall pay interest on all late payments at the lesser of (a) 1.5% per month or (b) the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse Storyteller for all reasonable and documented costs and expenses, including reasonable legal fees, incurred in collecting any unpaid amounts owed by Customer hereunder.
The initial term of this Agreement shall commence upon the Customer’s subscription to the Service and shall continue for the period of the initial subscription selected by the Customer (the “Initial Subscription Term”). The Initial Subscription Term shall continue to automatically renew for a period equal to the length of the Initial Subscription Term (each, a “Renewal Subscription Term”) at Storyteller’s then-current rates unless either party gives the other party written notice of cancellation at least 30 days prior to the end of the Initial Subscription Term or the Renewal Subscription Term then in effect. The Initial Subscription Term plus all Renewal Subscription Terms are referred to herein as the “Subscription Term”.
Storyteller may terminate the service if the other party materially breaches this Agreement and, where such breach is curable, has not cured such breach within 30 days’ receipt of written notice.
Upon any termination of this Agreement:
All account and billing information, and all data and information which the Customer inputs into the Service (collectively, “Customer Data”) will not be used by Storyteller except as permitted herein.
Storyteller may analyze Customer Data, to create de-identified or aggregated statistics or data that do not identify Customer or any individual, household, user, browser, or device and Storyteller may during and after the Subscription Term use and disclose such statistics or data in its discretion. Except as specified otherwise in this Agreement.
Storyteller shall have the right to use the Customer’s name and logo on client lists published on Storyteller’s websites and in marketing materials. Storyteller may also announce the relationship hereunder in a press release.
Your content must not be illegal, unlawful, libelous, maliciously false, obscene, indecent, in contempt of any court, blasphemous, in breach of any contract, pornographic, untrue, false, inaccurate, misleading, offensive, deceptive, fraudulent, threatening, abusive, harassing, anti-social, menacing, hateful, discriminatory or inflammatory; infringe any rights including copyright, moral right, database right, trade mark right, design right, right in passing off, intellectual property right, any right of confidence, right of privacy, right under data protection legislation or any person’s legal rights; contain negligence, religious or racial hatred, official secrets, instructions that could cause illness, injury, death, loss or damage; incite, instruct or promote crime; depict violence in an explicit, graphic or gratuitous manner; constitute spam, cause annoyance, cause inconvenience or cause needless anxiety.
Storyteller represents and warrants that the Service when used in accordance with the applicable end-user instructions and manuals (the “Documentation”) will conform to the Documentation in all material respects. Storyteller does not warrant that it will be able to correct all reported defects or that use of the Service will be uninterrupted or error-free. Storyteller makes no warranty regarding features or services provided by any third parties. Storyteller retains the right to modify the Service and the Storyteller Technology in its sole discretion. Customer’s sole remedy for Storyteller’s breach of the warranty in this paragraph shall be that Storyteller shall remedy the applicable error, or if Storyteller is unable to do so in a timely manner, refund to Customer actual damages up to a limit of the Fees prepaid for the Service for the remainder of the Subscription Term.
Except for the warranties set forth in section 6.1, Storyteller makes no representation or warranty whatsoever and hereby disclaims all representations and warranties with respect to the Service (in each case whether express or implied by law, course of dealing, course of performance, usage of trade or otherwise), including any warranty (a) of merchantability, fitness for a particular purpose, or non-infringement, (b) that the service will meet customer’s requirements, will always be available, accessible, uninterrupted, timely, secure or operate without error, (c) as to the results that may be obtained from the use of the service, or (d) as to the accuracy or reliability of any information obtained from the service.
In no event shall either party be liable for any indirect, consequential, incidental, special, exemplary or punitive damages, loss of data, lost profits or revenue or costs of procurement of substitute service arising out of or related to the service or this agreement, however caused, whether such damages arise in contract, tort (including negligence) or otherwise, even if such party has been advised of the possibility of such damages.
To the fullest extent permissible by applicable law, Storyteller’s total liability for all damages arising out of or related to the service or this agreement, whether in contract, tort (including negligence) or otherwise, shall not exceed the total amount of fees paid by the customer to storyteller during the previous 12 months of the then-current subscription term.
The limitations of liability in section 7 shall not apply to (a) customer’s obligation to pay all amounts due hereunder; (b) customer’s indemnification obligations under section 8; (c) liability arising from customer’s breach of confidentiality obligations in section 9 and (d) customer’s violation of storyteller’s intellectual property rights (including any limitations or restrictions on use of the service).
The parties agree that the limitations of liability set forth in section 7 are a fundamental basis of the bargain, that Storyteller has set its fees in reliance on the enforceability of these provisions, and that they shall apply notwithstanding that any remedy shall fail its essential purpose.
Customer shall defend, any claim, suit, or action against Storyteller and its directors, officers and employees (“Storyteller Indemnified Parties”) brought by a third party to the extent that such claim, suit or action is based upon any Customer Data or Customer and its users use of the Service in violation of this Agreement (“Storyteller Claim”) and Customer shall indemnify and hold Storyteller harmless, from and against Losses that are specifically attributable to such Storyteller Claim or those costs and damages agreed to in a settlement of such Storyteller Claim.
As conditions of the indemnification obligations in Sections 8.1 above: (a) the applicable Customer Indemnified Party or Storyteller Indemnified Party (the “Indemnitee”) will provide the indemnifying party (the “Indemnitor”) with prompt written notice of any Claim for which indemnification is sought (provided that failure to so notify will not remove the Indemnitor’s indemnification obligations except to the extent it is prejudiced thereby); (b) the Indemnitee will permit the Indemnitor to control the defense and settlement of such Claim; and (c) the Indemnitee will reasonably cooperate with the Indemnitor in connection with the Indemnitor’s evaluation, defense, and settlement of such Claim. In defending any Claim, the Indemnitor shall use counsel reasonably satisfactory to the other party. The Indemnitor shall not settle or compromise any such Claim or consent to the entry of any judgment without the prior written consent of the other party (not unreasonably withheld).
Storyteller’s obligations in Section 8.1 above shall not apply to any Claim to the extent arising from or relating to: (a) misuse of the Service not strictly in accordance with the Documentation, Storyteller’s instructions and this Agreement; (b) any modification, alteration or conversion of the Service not created or approved in writing by Storyteller; (c) any combination of the Service with any computer, hardware, software or service not provided by Storyteller; (d) Storyteller’s compliance with specifications or other requirements of Customer; or (e) any third party data or Customer Data. If the Service is or may be subject to a Customer Claim, Storyteller may, at its cost and sole discretion: (i) obtain the right for Customer to continue using the Service as contemplated herein; (ii) replace or modify the Service so that it becomes non-infringing without substantially compromising its principal functions; or (iii) to the extent the foregoing are not commercially reasonable, terminate this Agreement and return to Customer any prepaid Fees for the Service associated with the then-current Subscription Term. Storyteller’s obligations in Section 8 shall be Storyteller’s sole obligations, and Customer’s sole remedies, in the event of any intellectual property infringement or misappropriation claims, suits, or actions.
“Confidential Information” means information that is disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) hereunder during the Subscription Term that is clearly labeled or identified as confidential or proprietary when disclosed, or that, under the circumstances, should reasonably be treated as confidential, including without limitation information (tangible or intangible) regarding a party’s technology, designs, techniques, research, know-how, specifications, product plans, pricing, customer information, user data, current or future strategic information, current or future business plans, policies or practices, employee information, and other business and technical information. Receiving Party shall not have any obligations of confidentiality for any information that: (a) is or becomes generally known to the public through no fault of, or breach of this Agreement by, Receiving Party; (b) is rightfully in Receiving Party’s possession at the time of disclosure without an obligation of confidentiality; (c) is independently developed by Receiving Party without the use of Disclosing Party’s Confidential Information; or (d) is rightfully obtained by Receiving Party from a third party without restriction on use or disclosure. In addition, (i) the terms and conditions of this Agreement shall be deemed to be Confidential Information of both parties; (ii) Service and Storyteller Technology shall be deemed Confidential Information of Storyteller, regardless of whether or not they are labeled or identified, or would reasonably be considered confidential; and (iii) Customer Data shall be deemed Confidential Information of Customer.
Receiving Party shall, during the Subscription Term and thereafter, (a) not disclose Confidential Information to any third party (other than as permitted in the last sentence of this paragraph); (b) use Confidential Information only to the extent reasonably necessary to perform its obligations or exercise its rights under this Agreement; (c) disclose Confidential Information only to those of its employees and independent contractors who reasonably need to know such information for purposes of this Agreement and who are bound by confidentiality obligations offering substantially similar protection to those in this Section 10; and (d) protect all Confidential Information from unauthorized use, access or disclosure in the same manner as Receiving Party protects its own confidential information of a similar nature, and in no event with less than reasonable care. Notwithstanding the above, this paragraph shall not prohibit: (i) Receiving Party from disclosing Confidential Information to the extent required by applicable law, rule or regulation (including a court order or other government order); provided that Receiving Party provides Disclosing Party prior written notice of such disclosure, to the extent permitted, and reasonably cooperates with efforts of Disclosing Party to seek confidential treatment thereof, to the extent such cooperation is requested by Disclosing Party; or (ii) a party from disclosing the terms and conditions of this Agreement to its attorneys and financial advisors, or current or potential lenders, other sources of financing, investors or acquirers; provided that such third parties are bound by confidentiality obligations offering substantially similar protection to those in this Section 10 (provided further that such third parties are only permitted to use such information for the purpose of advising, lending or providing financing to, or investing in or acquiring, such party, as applicable).
Except as otherwise expressly provided in this Agreement, Receiving Party will return to Disclosing Party, or destroy or erase, Confidential Information in its possession in tangible form, upon the termination of this Agreement; provided that: (a) Receiving Party may retain a copy of Confidential Information solely for the purposes of tracking Receiving Party’s rights and obligations hereunder with respect thereto; (b) Receiving Party may retain copies of Confidential Information solely to the extent required by law or by applicable professional standards which require such party to retain copies of its working papers; and (c) Receiving Party may retain Confidential Information solely to the extent reasonably necessary for Receiving Party to exercise rights or perform obligations under this Agreement that survive such termination.
Notwithstanding the above or anything to the contrary herein, to the extent that Customer at any time provides Storyteller with any feedback or suggestions regarding the Service, including potential improvements or changes thereto (collectively, “Feedback”), such Feedback shall not be considered Confidential Information of Customer, and Storyteller may use, disclose and exploit such Feedback in any manner it chooses. All Feedback provided by the Customer is provided “as is” and without warranty or representation of any kind.