ACCEPTANCE OF TERMS
These terms and conditions (these “Terms”) are a legal contract between you and TubeMogul, Inc. (“TubeMogul”, “we” or “us”). The Terms explain how you are permitted to use the website located at the url: http://www.tubemogul.com as well as all associated websites provided by TubeMogul, its subsidiaries and affiliated companies and linked to www.tubemogul.com (collectively, the “Site”). By using this Site, you are agreeing to all the Terms; if you do not agree with any of these Terms, do not access or otherwise use this Site, any of the services available through this Site (“Services”) or any information contained on this Site.
TubeMogul may make changes to the Site or Services at any time. TubeMogul may change, update, or add or remove provisions of these Terms at any time by posting the updated Terms on this Site. By continuing to use this Site or any Services after TubeMogul has updated the Terms, you are agreeing to all the updated Terms; if you do not agree with any of the updated Terms, you must stop using the Site and Services. These Terms were last updated on March 4, 2014.
By using the Site and/or any Services, you represent that you are 18 years of age or older. If you are using this Site or Services on behalf of a company, you represent that you are authorized to legally bind that company to these Terms.
If TubeMogul believes that you do not meet any of these requirements TubeMogul may immediately terminate your use of the Site and/or Services.
DESCRIPTION OF SERVICES
TubeMogul’s Video Advertising Platform Services allow you to plan, buy, measure and optimize your global digital video advertising spend. Our Video Advertising Platform integrates programmatic technologies and disparate sources of inventory within a single platform, enabling you to launch sophisticated, scalable digital video advertising campaigns. We make our Video Advertising Platform available through two offerings: our “Platform Direct” offering, which allows you to continuously run campaigns through a self-serve model, and our “Platform Services” offering, which allows you to specify campaign objectives and have our team execute on your behalf.
TubeMogul’s Video Viewability Audit Services allow you to measure whether somebody had the opportunity to view your digital video advertisement and how much of the advertisement was in view. Site level reporting is available in real time, allowing you to audit exactly where your advertisements are running and ensure high quality placements. The Video Viewability Audit Services work on most publisher sites that run VPAID enabled media and require no integrations or changes to a publisher’s website. In order to use the Video Viewability Audit Services, you are required to have your own media purchasing relationship with the applicable publishers.
TubeMogul’s OneLoad Services allow you to upload your video to OneLoad which will then post that video to selected publisher sites of your choice. A current list of available publishers is available at the www.oneload.com website.
You acknowledge and agree that your use of the Services is subject to these Terms and any applicable terms and conditions of the publisher websites where you choose to display your advertisements, and you agree to be bound by such terms and conditions. Those terms are available on the respective publisher websites. You represent and warrant that your use of the Video Viewability Audit Services is permitted under the terms of your agreement(s) with all applicable publishers.
TubeMogul may provide you with additional custom services (“Premium Services”) upon your request and separate agreement with TubeMogul. Premium Services will be subject to the terms and conditions of that separate agreement and to these Terms.
Your use of any new features that augment or enhance the current Services, including the release of new tools and resources, shall be subject to the Terms and may require you to agree to additional terms and conditions.
In order to use the Site and Services, you must obtain access to the World Wide Web, either directly or through devices that access web-based content, and pay any service fees associated with such access. In addition, you must provide all equipment necessary to make such connection to the World Wide Web, including a computer and modem or other access device. You also understand and agree that the Services may include advertisements and that these advertisements are necessary for TubeMogul to provide the Services. You also understand and agree that the Site and Services may include certain communications from TubeMogul, such as service announcements, administrative messages and the TubeMogul newsletter, and that these communications are considered part of the TubeMogul membership. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing. You agree not to access the Site or Services by any means other than through the interfaces that are provided by TubeMogul for such access.
In order to use the Services, you must have a valid TubeMogul user ID. You are responsible for maintaining the confidentiality of your TubeMogul user ID and password, and are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify TubeMogul of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. You understand and agree that TubeMogul cannot and will not be liable or any loss or damage arising from your failure to comply with these requirements.
All the information that you provide when registering for an account and otherwise through the Site or Services must be accurate, complete and up to date.
CONTENT AND CONDUCT RULES AND OBLIGATIONS
You understand and agree that all information, data, text, software, music, sound, photographs, graphics, video, messages, goods, products, services or other materials (“Content”) are the sole responsibility of the person from which the content originated. This means that you, and not TubeMogul, are entirely responsible for all Content that you upload, post, transmit, incorporate into advertisements, or otherwise make available via the Services. TubeMogul does not control the Content posted via the Services, and, as such, does not guarantee the accuracy, integrity or quality of such Content.
You understand and agree that under no circumstances will TubeMogul be liable in any way for Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use or distribution of any Content posted, transmitted or otherwise made available via the Services. You acknowledge that TubeMogul may, but has no obligation to pre-screen Content, and shall have the right (but not the obligation) in its sole discretion to refuse or move any Content that is made available via the Services. You agree that you must evaluate, and bear all risks associated with, the use or distribution of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.
You understand and agree that the technical processing and transmission of the Services, including your Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Acceptance of advertising programs is subject to publisher media availability and TubeMogul is not liable for the failure of a publisher to accept advertising.
You understand and agree that by using the Services you authorize TubeMogul to use information you provide to authenticate your account (including, without limitation, your email address and log-in information) for the purposes of managing your video content (including, without limitation, uploading, distributing, editing and removing video content) on your behalf and verifying your ownership of the account.
When using the Site and/or the Services, you agree to abide by common standards of etiquette and act in accordance with the law. For example, you agree not to not to:
- Upload, post, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy (including, but not limited to, any address, e-mail, phone number, or any other contact information without the consent of the owner of such information), hateful, or racially, ethnically, or otherwise objectionable;
- Harm minors in any way;
- Upload, post or otherwise transmit any Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- Upload, post or otherwise transmit any Content that infringes any patent, trademark, trade secret, copyright, rights of privacy or publicity, or any other proprietary rights of any party;
- Upload, post or transmit unsolicited commercial email or “spam”. This includes unethical marketing, advertising, or any other practice that is in any way connected with “spam”, such as (a) sending mass email to recipients who haven’t requested email from you or with a fake return address, (b) promoting a site with inappropriate links, titles, descriptions, or (c) promoting your Content by posting multiple submissions in public forums that are identical. Also defined as “spam” are any videos involving affiliate marketing, network marketing, cash gifting, multi-level marketing, phishing, or any videos that a reasonable person would consider to be a scam or misleading. Further, “spam” can include any content that TubeMogul deems not entertaining or informative;
- Upload, post or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- Interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services;
- Intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including without limitation, the New York Stock Exchange, the America Stock Exchange, or the NASDAQ, and any regulations having the force of law;
- “Stalk” or otherwise harass another;
- Promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals. This may include, without limitation, providing instructions on how to assemble bombs, grenades and other weapons or incendiary devices; or
- Offer for sale or sell any item, good or service that (a) violates any applicable federal, state, or local law or regulation, (b) you do not have full power and authority under all relevant laws and regulations to offer and sell, including all necessary licenses and authorization, or (c) TubeMogul determines, in its sole discretion, is inappropriate for sale through the Service provided by TubeMogul.
LINKS TO THIRD PARTY SITES
YOU AGREE THAT TUBEMOGUL WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY GOODS, SERVICES, INFORMATION, RESOURCES AND/OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD PARTY WEB SITES AND/OR THIRD-PARTY DEALINGS OR COMMUNICATIONS, OR FOR ANY HARM RELATED THERETO, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE CONTENT OR BUSINESS PRACTICES OF ANY THIRD PARTY.
DIGITAL MILLENNIUM COPYRIGHT ACT
You agree to comply with all applicable local laws, including but not limited to local rules regarding online conduct and acceptable Content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.
You agree to indemnify, defend, and hold harmless TubeMogul and its subsidiaries, affiliates, officers, agents, co-branders, or other partners, investors, and employees, from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your Content, your use of the Services, your violation of these Terms, or your violation of any rights of another, whether you are a registered user or not.
GENERAL PRACTICES REGARDING USE AND STORAGE
You acknowledge and agree that TubeMogul may establish general practices and limits concerning use of the Services and may modify such practices and limits from time to time.
MODIFICATIONS TO SERVICES
TubeMogul reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any portion thereof) with or without notice at any time. You acknowledge and agree that TubeMogul shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services.
You acknowledge and agree that the Site, Services, any necessary software provided by TubeMogul for use in connection with the Services (“Software”), all TubeMogul Content contained on the Site and Services, and any analytical data derived from the use of the Software and Services (“Data”) contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that TubeMogul retains all right, title and interest in and to the Services, Software, TubeMogul Content and Data and you shall not acquire any right, title or interest in or to the Services, Software, TubeMogul Content, Data and any associated intellectual property rights (other than the limited use rights set forth in these Terms).
Except as expressly authorized in writing by TubeMogul or otherwise permitted herein, you agree not to modify, retrieve, save, rent, copy, lease, loan, sell, resell distribute or create derivative works based on the Services, Data, TubeMogul Content or Software, in whole or in part.
All goodwill arising out of your use of any TubeMogul trademarks shall inure solely to the benefit of TubeMogul.
If you send or transmit any communications, comments, questions, suggestions, or related materials to us, whether by letter, email, telephone, or otherwise (collectively, “Feedback”), suggesting or recommending changes to the Site, Services or our Content, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and TubeMogul is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that TubeMogul is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
YOUR USE OF THE SITE AND SERVICES ARE AT YOUR SOLE RISK. THE SITE, SERVICES AND ALL CONTENT THEREON OR THEREIN ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TUBEMOGUL EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
TUBEMOGUL WILL MAKE COMMERCIALLY REASONABLE EFFORTS TO MAINTAIN THE SITE AND SERVICES, HOWEVER, TUBEMOGUL IS NOT RESPONSIBLE FOR ANY DAMAGE, LOSS OF DATA, CUSTOMER INFORMATION OR VENDOR DATA, REVENUE OR OTHER HARM TO BUSINESS ARISING OUT OF DELAYS, MISDELIVERY OR NONDELIVERY OF INFORMATION OR CONTENT, INACCURACY OF DATA USED FOR ADVERTISING DECISIONS, RESTRICTION OR LOSS OF ACCESS OR CHANGES TO YOUR TUBEMOGUL ACCOUNT, BUGS OR OTHER ERRORS, UNAUTHORIZED USE DUE TO YOUR SHARING OF ACCESS TO THE SERVICES, OR OTHER INTERACTION WITH THE SITE AND/OR SERVICES. YOU ARE RESPONSIBLE FOR MAINTAINING AND BACKING-UP YOUR DATA AND INFORMATION THAT MAY RESIDE ON THE SERVICES. TUBEMOGUL DOES NOT WARRANT THAT (i) THE SITE, SERVICES OR TUBEMOGUL CONTENT WILL MEET YOUR SPECIFIC REQUIREMENTS, (ii) THE SITE, SERVICES OR TUBEMOGUL CONTENT WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE OR SERVICES WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF THE PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SITE OR SERVICES WILL MEET YOUR EXPECTATIONS, AND (v) ANY ERRORS IN THE SOFTWARE, SERVICES OR TUBEMOGUL CONTENT WILL BE CORRECTED.
WITHOUT LIMITING THE GENERAL DISCLAIMER OF WARRANTIES SET FORTH HEREIN, TUBEMOGUL WILL HAVE NO LIABILITY TO USERS OF THE VIDEO VIEWABILITY AUDIT SERVICES DUE TO PROBLEMS WITH OR NON-FUNCTIONALITY OF THIRD PARTY TAGS, DISCREPANCIES BETWEEN TUBEMOGUL’S REPORTING OF IMPRESSION COUNTS AND OTHER RELEVANT ADVERTISING METRICS AND THOSE OF PUBLISHERS OR OTHER THIRD PARTIES, ANY FAILURE OF TUBEMOGUL’S AD SERVING FUNCTIONALITY OR INCORRECT OR UNTIMELY DELIVERY OF ANY AD, OR THE NON-AVAILABILTY OF ANY DATA OR DELAY IN DELIVERING ANY DATA.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE AND/OR SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED THROUGH OR FROM THE SITE OR SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TUBEMOGUL SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER TANGIBLE LOSSES (EVEN IF TUBEMOGUL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM (i) THE USE OR THE INABILITY TO USE THE SITE, SERVICES AND/OR THE TUBEMOGUL CONTENT; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGE RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SITE OR SERVICES; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE OR SERVICES; (v) ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SITE AND/OR SERVICES OR OTHER PERSONS OR ENTITIES WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE AND/OR ANY SERVICE; OR (vi) ANY OTHER MATTER RELATING TO THE SITE, SERVICES AND/OR TUBEMOGUL CONTENT.
EXCLUSIONS AND LIMITATIONS
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF DISCLAIMER OR WARRANTIES AND LIMITATION OF LIABILITY SECTIONS MAY NOT APPLY TO YOU.
You acknowledge and agree that notices to you from TubeMogul may be made via email, regular mail or through publication on the Site or notification in your account interface for the Services. TubeMogul may also provide notices of changes to the Terms or other matters by displaying notices or links to notices to you generally through the account interface for the Services. The Terms and the relationship between you and TubeMogul shall be governed by the laws of the State of California without regard to its conflict of law provisions. The failure of TubeMogul to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision. The Terms, and any addenda, constitute the entire agreement between you and TubeMogul and govern your use of the Site and Services, superseding any prior agreements between you and TubeMogul (including, but not limited to, any prior versions of the Terms). You may also be subject to additional terms and conditions from the various publishers utilized in the performance of the Services. If any provision of the Terms or any other document incorporated in the Terms by reference is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Site, Services or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in these Terms are for convenience only and have no legal or contractual effect.
ONELOAD PARTNER SITES
By agreeing to these Terms, you are agreeing to the respective terms of service or use of all of the partner sites to which you deploy videos using the OneLoad Services.
PRICING, BILLING AND ACCOUNT CREATION
Video Advertising Platform:
Use of the Platform Direct offering of the Video Advertising Platform Service requires a TubeMogul platform account. In order to establish a TubeMogul platform account, you must contact your TubeMogul sales representative or request more information in order to initiate the process of establishing a TubeMogul platform account. Platform accounts are subject to, among other things, a satisfactory credit review, and may be required to be funded with a pre-paid balance and maintained with a valid credit card. You will be billed for advertising spending, which we pay to publishers and their agents, plus a percentage of the amount of your advertising spending for your use of the Platform Direct offering, as well as for your usage of optional features and functionalities (for example, rich media, audience targeting data, and performance based advertising spending). Fees for optional features and functionalities are provided in the account interface at the time such features are utilized. You are required to maintain a positive balance on your account for each day that your campaigns remain active. Billing is based on TubeMogul reporting which may not agree with 3rd party tracking systems. TubeMogul is not responsible for campaign under delivery due to changes in market pricing. You are responsible for checking up on campaigns and adjusting bids accordingly. Also, from time to time TubeMogul may exceed a daily budget by a slight amount. In the event that a daily budget is exceeded by more than 2%, you will be credited the difference of the full amount.
Use of the Platform Services offering of the Video Advertising Platform Service requires an insertion order accepted by TubeMogul. You must contact your TubeMogul sales representative or request more information in order to initiate the process of completing an insertion order.
Video Viewability Audit:
TubeMogul’s Video Viewability Audit Services are free, and you may initiate the process of establishing a user account here. TubeMogul reserves the right to disable the account of any user who in TubeMogul’s sole discretion is using the Video Viewability Audit Service in an excessive or abusive manner, or otherwise not in accordance with the intended purpose of limited, intermittent usage to audit the viewability of ad inventory obtained from third party publishers.
TubeMogul’s OneLoad Services are free for users distributing media, new media, UGC and other non-commercial content. A user account may be established here. Users can select among several tiers of service which include additional features and increased usage capabilities. Accounts shall be pre-paid with a valid credit card. A discounted rate is available for the Business Tier with a 1-year commitment. The pre-paid monthly OneLoad Service automatically renews at the end of each paid month. The pre-paid annual OneLoad Service automatically renews at the end of each paid year. The credit card on file will automatically be charged accordingly. No refunds will be granted on pre-paid annual or monthly OneLoad Services. It is your responsibility to cancel the service prior to the renewal in order to not be charged.
If you have any questions about these Terms or otherwise need to contact TubeMogul for any reason, you can reach us at email@example.com.