Updated February 28th, 2022
Welcome to MelodyArc
These Terms of Service govern your access to and use of the MelodyArc Services, on a paid or free plan basis. By installing MelodyArc or using or accessing the Services, you are agreeing to these terms. All terms used in these Terms of Service have meanings defined in Section 15.
These Terms are a legally binding contract between you and MeldoyArc, Inc. To access the MelodyArc Platform, you must be able to enter into a legally binding contract, and represent that you are at least 18 years old or, if a business, duly organized and legally in good standing.
We may update the Agreement from time to time. If we materially update any portion of the Agreement, we will notify you, at the email address provided in your Account profile, or by other reasonable means (for example, by posting a notice on our website) before the date the update becomes effective. We will also post the updated Agreement in its original location marked with a new date. Changes will not be retroactive nor affect your current Subscription Term. Your renewal of your Subscription Term after we publish a notice about changes to the Agreement means that you are consenting to the updated Terms.
During the Subscription Term, we grant you a limited, non-exclusive, revocable, non-sublicensable, non-transferable license to use and access the Services described in the Order Form, pursuant to the terms of this Agreement. Your use of the Services includes the right to access all functionality available in the package(s) chosen on the Order Form (and any applicable usage limitations), as of the effective date of the Order Form. The Services may require installation of MelodyArc code on Client Properties. In these cases, subject to the same conditions above, the rights granted in this Section further include the right to install and use relevant MelodyArc Services on the Client Properties.
If you register an Account as an administrator of the Services on behalf of a business, organization or other legal entity, (a) you represent and warrant that you have the authority to legally bind that entity and to grant MelodyArc all permissions and licenses provided in this Agreement; (b) you shall not allow access to or use of Services by anyone other than Authorized Users.
Authorized Users agree to: (i) not share your Account or transfer any part of it to anyone else; (ii) provide accurate, current and complete information during the registration process and keep your Account up-to-date; and (iii) keep your password secure and confidential. We reserve the right to refuse registration. You agree to notify us immediately of any unauthorized use of your Account and are responsible for anything that happens through your Account prior to closing it or reporting misuse to us. The Client is responsible for Authorized Users' compliance with this Agreement, including for ensuring that Authorized Users maintain the confidentiality of their passwords and user names.
You may only use the Services on one Client Property per subscription, unless other specified in the Order Form. The Services may be subject to additional limitations, for example, numerical limits on Customer Visitors or Actions Taken specific to the type of subscription you purchase. If we make modifications to these limits, these modifications will not apply to you until your next Subscription Term, if any.
From time to time, MelodyArc may enhance or modify the Platform or introduce new Services. MelodyArc will provide notice unless such changes are of minor nature with no material effect on the Agreement. MelodyArc may make available new features or functionalities and may market these separately and require the payment of additional fees. You agree that we shall not be liable to you or any Third Party for any modification of the Services in keeping with this section.
In consideration for MelodyArc providing the Services, the Client will pay the Company the non-refundable fees ("Fees"), if applicable, set forth in the applicable Order Form in accordance with the payment terms set forth therein and without offset or deduction. The Client will agree to automatic, monthly billing through MelodyArc or other Third Parties. MelodyArc or such Third Parties will charge the Client's selected payment method (such as a credit card or billed through a Third Party, such as Shopify) for any Fees on the applicable payment date, including any applicable taxes. If MelodyArc or such Third Parties cannot charge the Client's selected payment method for any reason, the Client remains responsible for any uncollected amounts, and the Company will attempt to charge the payment method again as Merchant may update its payment method information.
By using the Services, including any products or services that facilitate the sharing of Client or Customer Data to or from Third Party Services, you understand that you are solely responsible for Customer Data and you assume all risks associated with the Customer Data, including anyone's reliance on its quality, accuracy, or reliability. As between MelodyArc and you, you are solely responsible for the accuracy, quality, integrity, and reliability of all Client and Customer Data. You represent and warrant that you or your Authorized Users own or have the necessary permissions to use, and authorize the use of, the Customer Data as described herein.
You agree that we will have the right to monitor use of the Services by all of our Clients and their Customers and use the data gathered in an aggregate and anonymous manner, which we may use for any business purpose during or after the term of this Agreement (including to develop and improve our products and services, to compile statistical and performance information related to the provision and operation of the Services or to support benchmarking or similar features of the Services). You agree that we may use and publish the MelodyArc Data, provided that such information does not incorporate any Customer Data or identify you, Authorized Users, and is stripped of all persistent identifiers (such as device identifiers, IP addresses, and cookie IDs). We retain all intellectual property rights in the MelodyArc Data.
We have the absolute right to remove or disable access to any Client or Customer Data on the Platform as needed to (a) operate, secure and improve the Services (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes); (b) ensure Authorized Users' compliance with the Agreement (or any MelodyArc policy), Applicable Law, or an order or requirement of a court, law enforcement or other administrative agency or governmental body; or (c) as otherwise set forth in this Agreement. If we become aware of any Client or Customer Data that allegedly violates this Agreement, we may investigate the allegation and determine in our sole discretion whether to act, but have no liability or responsibility to do so. You agree to cooperate with us in good faith, as we may reasonably request, in any investigation we choose to undertake.
You may not access or use the Platform for any purpose other than that for which we make the Platform available. You shall not use, or encourage, facilitate, or instruct others to use the Services for any illegal, harmful or offensive use.
As a user of the platform. You agree not to:
You shall not transmit, store, display, distribute or otherwise make available any Customer or Client Data or other Content through the Services that:
MelodyArc and you agree to maintain the confidentiality of all Confidential Information disclosed to one another under this Agreement, and to only use the Confidential Information as specifically permitted by the terms and conditions of this Agreement. "Confidential Information" is information, in whatever form, not generally known or readily available to the public, and proprietary and confidential to the disclosing party, including, with respect to MelodyArc, the MelodyArc Data and all non-public features of the MelodyArc Platform and Services; with respect to Customer, Customer Data; and with respect to both parties, the terms and conditions of each Order Form. Notwithstanding the foregoing, we reserve the right at all times to disclose any information as necessary to satisfy any Applicable Law, legal process or governmental request. You agree not to publicly disseminate information regarding the performance of the Services (which is deemed MelodyArc's Confidential Information).
Through this Agreement, you acknowledge that you are obtaining a limited right to use the Services and that irrespective of any use of the words "purchase", "sale" or similar terms, no ownership rights are transferred to you under this Agreement. The Services are offered as an online, hosted product. As between you and MelodyArc, you acknowledge and agree that we (or our licensors) own the Services (including the MelodyArc Technology) and the copyrights, trademarks, service marks, trade names, trade secrets, and other intellectual and proprietary rights throughout the world associated with MelodyArc and the Services (with the exception of Customer Data), which are protected by applicable intellectual and proprietary rights and laws.
As between MelodyArc and you, MelodyArc acknowledges and agrees that you own the Client and Customer Data, Client Properties, and all content contained within them (excluding any MelodyArc Technology) and your copyrights, trademarks, service marks, trade names, trade secrets, and other intellectual and proprietary rights with respect to your products and services. You grant to MelodyArc and our Third Party providers (including Third Party Services), under all of your applicable intellectual property rights, a worldwide, non-exclusive, royalty-free, non-transferable, sublicensable license to use, reproduce, distribute, modify, perform and display the Client and Customer Data solely in conjunction with the provision of the Services under this Agreement. We agree not to disclose, disseminate, or make available Customer Data to third parties other than as needed to perform the Services or as otherwise provided in this Agreement. Additionally, you grant us the right and license to use your trade names, trademarks, service marks, trade dress, logos and other rights in indicia to identify you as a MelodyArc customer.
We welcome and encourage suggestions for improvements and other feedback related to the Platform ("Feedback"). You may submit Feedback by emailing us at email@example.com. or by other means of communication. Any Feedback you submit to us will be considered non-confidential and non-proprietary to you. By submitting Feedback to us, you grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide, assignable, sublicensable, transferable license to use, modify, prepare derivative works of, publish, distribute and sublicense the Feedback, and you irrevocably waive, and cause to be waived, against us or our users any claims and assertions of any moral rights contained in such Feedback.
We may monitor use of the Services by all Clients and Customers and use the data gathered in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Services or to support benchmarking or similar features of the Services. You agree that we may use and publish the Data, provided that such information does not incorporate any Customer Data or identify you. We retain all intellectual property rights in the Data.
By executing an Order Form for purchase of Services, you are agreeing to pay applicable fees for the entire Subscription Term. You cannot cancel or terminate a Subscription Term except as expressly permitted by Section 9(B) (Termination and Suspension). If no subscription start date is specified on the applicable Order Form, the subscription starts when you first obtain access to the Services. Each Subscription Term will automatically renew for an additional monthly period unless: (i) otherwise stated on the applicable Order Form; or (ii) either party gives notice (through the means of a Third Party or written notice or otherwise) of non-renewal before the end of the then-current Subscription Term. Pricing for any Subscription Term renewal, new Order Form, or Order Form changes will be at MelodyArc's then-applicable rates. This Agreement is effective until all Subscription Terms for the Service(s) have expired or are terminated as expressly permitted in this Agreement.
Either party may terminate this Agreement, including any related Order Form, if the other party: (a) commits a material breach of this Agreement (including a failure to pay undisputed fees); (b) ceases operation without a successor; or (c) if permitted by applicable law, seeks protection under any bankruptcy, receivership, trust deed, creditors' arrangement, composition, or comparable proceeding, or if any of these proceedings are instituted against that party. In addition, we may suspend or immediately terminate this Agreement with respect to a Customer or an Authorized User, and any related Order Forms, immediately in the event of a breach of Sections 5 (Acceptable Use of the Services) or 6 (Privacy); if you have exceeded reasonable usage limits due to actions not intended for use of the Services, or for one or repeated violations of this Agreement. We will have no liability for taking action as permitted above. For the avoidance of doubt, you will remain responsible for payment of fees during any suspension period under this Section 9(B). However, unless this Agreement has been terminated, we will cooperate with you to promptly restore access to the Services as long as we are able to once we verify that you have resolved the condition requiring suspension.
Upon any expiration or termination of this Agreement or an Order Form: (a) your license rights terminate and you must promptly: (i) stop use of the Services(s); (ii) stop distributing any MelodyArc Services installed on your Client Properties; and (iii) delete (or, at our request, return) any MelodyArc Assets or Confidential Information in your possession, custody, or control; and (b) your right to access any Client and Customer Data and Reports in the applicable Services will cease and MelodyArc may delete the Client and Customer Data and Reports at any time after the date of termination. If we terminate this Agreement for cause as provided in Section 9(B) (Termination and Suspension), any payments for the remaining portion of the Subscription Term will become due and must be paid immediately by you. Except where this Agreement specifies an exclusive remedy, all remedies under this Agreement, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a party. In the event that we permanently suspend your Account, during a Subscription Term pursuant to Section 9(B) (Termination or Suspension) above, you are not entitled to a restoration of your Account or any of your Customer Data. If we have suspended your individual Authorized User Account, you may not register a new Account or access and use the Services through an Account of another user. All sections of this Agreement which by their nature should survive termination will survive termination, including accrued rights to payment, confidentiality obligations, indemnification, warranty disclaimers, and limitations of liability.
THE SERVICES ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS. NEITHER MelodyArc NOR OUR SUPPLIERS MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. MelodyArc MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, THAT CUSTOMER DATA WILL BE ACCURATE, COMPLETE, OR PRESERVED WITHOUT LOSS, OR THAT THE SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE. MelodyArc DOES NOT GUARANTEE THAT SECURITY MEASURES WILL BE ERROR-FREE AND WILL NOT BE RESPONSIBLE OR LIABLE FOR UNAUTHORIZED ACCESS BEYOND OUR REASONABLE CONTROL. MelodyArc WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY CUSTOMER PROPERTIES OR THIRD-PARTY SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE ITEMS OR TO THESE ITEMS BY THE SERVICES), FOR THE COLLECTION, USE AND DISCLOSURE OF CUSTOMER DATA AUTHORIZED BY THIS AGREEMENT, OR FOR DECISIONS OR ACTIONS TAKEN (OR NOT TAKEN) BY CUSTOMER BASED UPON THE SERVICES (INCLUDING CHANGES TO CUSTOMER PROPERTIES). THE DISCLAIMERS IN THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, ANY STATUTORILY REQUIRED WARRANTIES UNDER APPLICABLE LAW, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW.
You agree to defend, indemnify, and hold us harmless, including our subsidiaries, Affiliates, and all of our respective officers, agents, partners, and employees, from and against any loss, damage, liability, claim, or demand, including reasonable attorneys' fees and expenses, made by any third party due to or arising out of: (a) use of the Services; (b) bread of the Agreement; (c) any breach of your representations and warranties set forth in the Agreement; or (d) your violation of the rights of a third party, including but not limited to intellectual property rights'. Notwithstanding the foregoing, we reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate, at your expense, with defense of such claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.
IN NO EVENT WILL WE OR OUR DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTIAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS OF DATA, OR OTHER DAMAGES ARISING FROM YOUR USE OF THE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
These Terms of Service and your use of the Services are governed by and construed in accordance with the laws of the State of Delaware applicable to agreements made and to be entirely performed within the State of Delaware, without regard to its conflict of law principles.
We reserve the right to change, modify, or remove components of the Services at any time for any reason at our sole discretion without notice. However, we have no obligation to update the Services. We also reserve the right to modify or discontinue the Services without notice at any time. We will not be liable to you or any third party for any modification, price change, suspension, or discontinuance of the Service. We cannot guarantee the Services will be always available. Inherent with the risks of the internet, we may experience unexpected problems or need to perform maintenance related to the Services, resulting in interruptions, delays, or errors. You agree that we have no liability whatsoever for any loss, damage, or inconvenience caused by your inability to access or use the Services during any downtime or discontinuance of the Services. Nothing in these Terms will be construed to obligate us to maintain and support the Platform or to supply any corrections, updates, or releases in connection therewith.
This Agreement (including each Order Form) contains the entire understanding between MelodyArc and you relating to the subject matter herein and supersedes all prior oral or written agreements between us. In the event of a conflict between the terms of these Terms of Service and an Order Form, the Terms of the Order Form shall control, but only as to that Order Form. You may not assign or transfer your rights and benefits under this Agreement without our prior written consent, but we may assign or transfer this Agreement without restriction. Except as set forth in this Agreement, nothing in this Agreement shall be deemed to confer any rights or benefits on any third party. No waiver, amendment, modification or addition to this Agreement shall be valid unless in writing and signed by both you and us. In the event any provision of this Agreement is determined to be invalid by a court of competent jurisdiction, such determination shall in no way affect the validity or enforceability of any other provision herein. To the extent allowed by Applicable Law, you agree that you will bring any claim or cause of action arising from or relating to your access or use of the Services within two (2) years from the date on which such claim or action arose or accrued or such claim or cause of action will be irrevocably waived. The relationship between the Parties is that of independent contractors. Nothing in this Agreement will be construed to establish any partnership, joint venture or agency relationship between the Parties. This is a non-exclusive arrangement.
If you have a question or complaint regarding the Services or about this Agreement, please send us an email at firstname.lastname@example.org. Please note that e-mail communications will not necessarily be secure; accordingly, you should not include credit card information or other sensitive information in your e-mail correspondence with us. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
"Account" means an account you register with MelodyArc prior to accessing the Services.
"Actions Taken" means any applicable actions taken by Customers or Clients on the Platform that are eligible to be tracked and charged for, such as order tracking actions.
"Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.
"Agreement" means these Terms of Service, Order Forms, and any other documents or policies referenced or incorporated therein.
"Applicable Law" means all applicable local, state, federal, and international laws, rules, and regulations.
"Authorized User" means an employee, representative, consultant, contractor or other agent of Company who is authorized to access and use the Services for Client's benefit through the individual's unique registered Account.
"Client Data" means the data, information and content provided by you to us, including through Third Party Services providers, to enable provision of the Services, including (i) Customer Content; (ii) Submitted Data; and (iii) Visitor Data.
"Client Property or Properties" means any a web page located at single domain/URL and its subdomains under your control that sends data to the MelodyArc Platform. Unless otherwise specified in an Order Form, you may only use the Services on one Client Property.
"Customer" means an end-user or visitor to the Client Property.
"Customer Data" means the data and information concerning the characteristics and activities of Customers on the Client Properties collected for Client by the Services.
"Feedback" means suggestions for improvements and other feedback related to the MelodyArc Platform.
"MelodyArc Data" means statistical and use data collected by us pertaining to use of the Services.
"MelodyArc Platform" means the MelodyArc software-as-a-service product(s) accessed through the MelodyArc application.
"MelodyArc Technology" means any and all Documentation, MelodyArc Data and other technology, code, know-how, logos and templates (including in any Reports or output obtained from the Services) underlying the Services, and anything delivered as part of support or other services, and any updates, modifications or derivative works of any of the foregoing, including as may incorporate any Feedback.
"Order Form" means any online sign-up or agreement to use MelodyArc Services that includes a price, whether free or paid. Unless specifically provided otherwise in the Order Form, Order Forms will be deemed to incorporate the terms of this Agreement.
"Report" means analyses generated through the MelodyArc Platform.
"Services" mean the services, individually and collectively, that we provide in connection with your subscription to the MelodyArc Platform, such as web-based analytics, system management and monitoring tools, Documentation, Reports, and associated technologies. Includes all MelodyArc Technology and any support and maintenance services provided.
"Subscription Fee" means the amount you pay, if any, for the Services.
"Subscription Term" means the initial term for the subscription to the applicable Services, as specified on your Order Form(s), and each subsequent renewal term, if any.
"Submitted Data" means data uploaded, inputted or otherwise submitted by Customer or Client to the Services, including content, data or other materials that you provide to the Services from your third-party data providers or Third Party Services.
"Third Party Service(s)" means services delivered or performed by third parties related to the Services, or other online, web-based services, e-commerce platforms or other business application subscription services, that interoperate with or are used in connection with the Services, and any other products not developed by MelodyArc.
"Visitor" means any end user of a Customer Property.
"We," "us," "our" and "MelodyArc" refer to MelodyArc Inc.
"You" or "your" refers to Client, Customer or an Authorized User, as applicable.