Effective Date: August 26, 2016
IMPORTANT–PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE SERVICES DESCRIBED BELOW. YOUR USE OF THESE SERVICES INDICATES YOUR ACKNOWLEDGEMENT THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT, AND THAT YOU AGREE TO BE BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT USE THE SERVICES. FOR PURPOSES OF THIS AGREEMENT AND ANY RELATED AGREEMENTS INCORPORATED BY REFERENCE YOU ARE CONSIDERED DYN’S CLIENT.
“RUM Beacon” means the software code installed either in your browser or on a Site in order to communicate with Dyn and execute tests on Internet performance. The tests measure network availability and performance to various endpoints.
“RUM Data” means all information and data provided by Dyn to you through the Rum Extension and more fully described below in Section 3.1.
“RUM Extension” means the browser extension tool provided by Dyn that delivers RUM Data to you.
“Services” means collectively the RUM Beacon, RUM Data and RUM Extension made available by Dyn.
“Site” means any webpage, mobile application, or other internet application under your control on which you have deployed a RUM Beacon.
“Visitors” means visitors to your Sites.
2. Ownership; License Grant; Restrictions
2.1. As between the parties, Dyn shall own and retain all rights, title and interest in and to the Services.
2.2 RUM Extension and RUM Beacon License. Subject to the terms and conditions of this Agreement, including the restrictions set forth in Section 2.3 below, Dyn grants to you a non-exclusive, non-transferable, non-sublicenseable, limited term license to install, copy and use the RUM Extension and RUM Beacon solely for internal purposes during the Term.
2.3 RUM Data License. Subject to the terms and conditions of this Agreement, including the restrictions set forth in Section 2.3 below, Dyn grants to you a non-exclusive, non-transferable, non-sublicenseable, license to use, copy, or make derivative works of the RUM Data solely for internal purposes during the Term.
2.4 Restrictions. You agree that you will not: (i) disclose or transmit the RUM Data, or any derivatives thereof, to third parties without the express written consent of Dyn; (ii) copy, modify, adapt, translate or otherwise create derivative works of the RUM Extension or the RUM Beacon except as expressly provided herein; (iii) reverse engineer the RUM Extension; (iv) rent, lease, sell, assign or otherwise transfer rights in or to the RUM Extension or the RUM Data; (v) use the Services to help develop any products or services, without Dyn’s prior written approval; (vi) remove any proprietary notices or labels on the Services; or (vii) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Services. You further agree to use the Services in accordance with Dyn’s Acceptable Use Policy, available at http://dyn.com/legal/acceptable-use-policy/.
DYN HAS ESTABLISHED A GLOBAL NETWORK PRESENCE AND MAY PROCESS RUM DATA ON OUR SERVERS IN MANY COUNTRIES AROUND THE WORLD, INCLUDING THE UNITED STATES. YOU AGREE THAT WE MAY PROCESS RUM DATA ON A SERVER LOCATED OUTSIDE THE COUNTRY WHERE YOU RESIDE.
YOU ADDITIONALLY ACKNOWLEDGE AND AGREE THAT THE RUM EXTENSION MAY FROM TIME TO TIME AUTOMATICALLY DOWNLOAD AND INSTALL SOFTWARE UPDATES, FIXES, PATCHES AND ENHANCEMENTS.
4. Client Obligations if Deploying Rum Beacon on Sites
4.1 Client agrees it will comply with all applicable laws, policies, and regulations relating to the collection of information from Visitors, including obtaining any necessary consents from Visitors, and it will not (nor will it allow any third party to) use the RUM Product to track or collect any data that personally identifies an individual (such as a name or physical address) unless it has obtained any necessary consents from Visitors.
5.1. Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY LAW, DYN HEREBY DISCLAIMS ALL WARRANTIES, BOTH EXPRESS AND IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. DYN DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE COMPLETENESS, ACCURACY OR SUITABILITY OF THE SERVICES OR RUM DATA. DYN SHALL HAVE NO LIABILITY RESULTING FROM CLIENT’S USE OF OR RELIANCE UPON THE SERVICES OR RUM DATA. ANY USE OR RELIANCE BY CLIENT OF THE SERVICES OR RUM DATA WILL BE AT CLIENT’S DISCRETION AND SOLE RISK, AND CLIENT WILL BE SOLELY RESPONSIBLE FOR THE RESULTS OF SUCH ACTIONS.
6. LIMITATION OF REMEDIES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL DYN, ITS AFFILIATES, OR ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES SHAREHOLDERS, REPRESENTATIVES OR AGENTS, OR THEIR RESPECTIVE SUCCESSORS, ASSIGNS, HEIRS, OR ESTATES, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOST DATA, LOSS OF BUSINESS INFORMATION, HARM TO REPUTATION, AND THE LIKE), OR ENHANCED, EXEMPLARY OR PUNITIVE DAMAGES, ARISING IN ANY WAY OUT OF OR CONNECTED WITH THE SERVICES, OR THE POSSESSION, USE, INABILITY TO USE, OR MALFUNCTION OF THE SERVICES, EVEN IF DYN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS.
7. Termination of Agreement; Withdrawal of Consent. If You breach any material term of this Agreement, or no longer agree to the terms of this Agreement, the Agreement shall immediately terminate and You shall immediately, fully, completely and irretrievably remove the RUM Beacon or RUM Extension. More information on removing the Software can be found at https://help.dyn.com/. All provisions relating to confidentiality, proprietary rights, and non-disclosure shall survive the termination of this Agreement.
8. Governing Law. This Agreement shall be governed by the laws of the State of New Hampshire without regard to its conflicts of law provisions. Neither the Uniform Computer Information Transaction Act (“UCITA”) nor the provisions of the United Nations Convention on the International Sale of Goods shall apply to this Agreement. Any dispute arising under this agreement shall be resolved exclusively by the state and federal courts located in the State of New Hampshire, and You hereby consent to the exclusive personal jurisdiction of, and venue in, such courts.
9. Severability. If any provision of this Agreement are determined by a court to be invalid, illegal or unenforceable, such determination shall not impair or affect the validity, legality or enforceability of the remaining provisions of the relevant agreement, and each provision, or portion thereof, is hereby declared to be separate, severable and distinct and the parties shall use their best efforts to agree upon a substitute provision that comports as closely as possible with the intent and effect of the stricken provision, failing which the court shall construe the relevant agreement to as closely as possible achieve the intention of the parties had the stricken provision remained.
10. Entire License and Waiver. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and may not be waived or modified except in writing by a duly authorized Dyn representative.
Dynamic Network Services, Inc.
150 Dow Street, Tower Two
Manchester, NH 03101