These Terms of Service, together with applicable Services Addenda, Order Forms, Insertion Orders, and materials referenced herein (collectively, this “Agreement”), describe the terms and conditions under which you (“Customer”) may access and use the Services (defined below) of Durin, Inc. (“Durin”).
BY CLICKING THE “SIGN UP” BUTTON, OR ACCEPTING THIS AGREEMENT THROUGH AN ORDER FORM THAT INCORPORATES THIS AGREEMENT, OR USING DURIN’S SERVICES, CUSTOMER AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF CUSTOMER IS ENTERING INTO THIS AGREEMENT ON BEHALF OF OTHER COMPANIES OR ENTITIES (FOR INSTANCE, AS AN AGENCY OR AUTHORIZED RESELLER), THEN CUSTOMER REPRESENTS AND WARRANTS THAT IT HAS THE AUTHORITY TO BIND SUCH COMPANIES AND ENTITIES TO THIS AGREEMENT.
DURIN MAY UPDATE OR OTHERWISE MODIFY THIS AGREEMENT FROM TIME TO TIME. CUSTOMER’S CONTINUED USE OF THE SERVICES AFTER AN UPDATE WILL CONSTITUTE ACCEPTANCE.
2.1 Access and Use. Provided that the Customer adheres to the payment of all applicable Fees and complies with this Agreement, Durin hereby grants the Customer, during the Term, a personal, non-exclusive, non-transferable, non-sublicensable, revocable (as provided herein) right to access and use the Durin Materials and Services as stipulated in the Order Form or Insertion Order.
2.2 Technical Requirements. Prior to commencing the Services, the Customer will need to comply with technical and Personal Data collection notice requirements as communicated by Durin, such as implementing Technology (i.e., Durin pixel) on Customer Sites, and for Customers with mobile applications, allowing Durin access to data collected by the Customer’s mobile measurement partner (“MMP”).
2.3 Use Restrictions. Except as permitted through the Services (or otherwise by Durin in writing), the Customer shall not, and shall not allow a third party, to:
2.4 Beta Versions and Trials. Durin may make new features and/or functionality related to the Services available to the Customer as a beta, pilot, test or similar description (each, a “Beta Version”), or offer a new or existing Customer a trial of the Services for a limited evaluation period (each, a “Trial”). Customer’s use of Beta Versions and Trials are governed by this Agreement, except that they are provided by Durin “AS-IS” and excluded from Durin’s warranties in Section 8.2 and indemnities in Section 9.2. Durin may discontinue or terminate Beta Versions or Trials at any time in its sole discretion and may choose not to make Beta Versions generally available.
3.1 General. The Customer is responsible for its use, and Authorized Users’ use, of the Services and Durin Materials and all activity occurring within the Account and shall comply at all times with this Agreement, including the Documentation.
3.2 Accounts.
3.3 Customer Content. The Customer is responsible for all Customer Content posted or published on or through the Services and on Customer Sites. During the Term, the Customer grants Durin a non-exclusive, worldwide, royalty-free license to use, modify, display, distribute, reproduce, store and publish Customer Content on and in connection with Durin’s provision of Services to the Customer. The Customer shall provide Durin with Customer Content in the form and manner specified by Durin or authorize Durin to retrieve it directly from Customer Sites or through third-party integrations.
3.4 Use of Trademarks. During the Term, the Customer grants Durin a limited right to use the Customer’s trademarks, logos, and names, in the form and manner approved by the Customer, on Durin’s websites, sales presentations, and other marketing materials, solely to identify the Customer as a customer of Durin.
4.1 General. This Section 4 only applies to Customers that are “Agencies” or “Authorized Resellers”. All rights, obligations, and references to “Customer” in this Agreement shall also apply to Agencies and Authorized Resellers. Agencies and Authorized Resellers shall be responsible for their respective customers’ or clients’ (hereinafter, “Client(s)”) compliance with this Agreement. In addition to the representations and warranties set forth in Section 8.1, Agencies and Authorized Resellers represent and warrant to Durin that they each have the authority to act on behalf of their Clients concerning all obligations and representations set forth in this Agreement and will provide written confirmation of the same if requested.
4.2 Agencies. Agency may establish an “Agency Account” to manage Services on behalf of one or more of Agency’s Clients pursuant to this Agreement. Durin reserves the right, in its sole discretion, to object to any Agency’s or Agency’s Client’s use of the Services.
4.3 Authorized Resellers. Authorized Resellers may establish a “Reseller Account” to facilitate Authorized Resellers’ marketing and sale of Services to Clients. Authorized Resellers may be required to enter into a separate license to use Durin’s Reseller API.
5.1 Fees. Customer shall pay the following fees (“Fees”):
5.2 Payment Terms. Unless otherwise agreed by the parties in writing, payment terms will be specified in the Order Form or Insertion Order and billed as follows:
5.3 Taxes. Fees are quoted exclusive of any Taxes (defined below). Customer is responsible for all sales, use, value added, withholding, and any other similar taxes imposed by federal, state, local, or foreign governmental entities on the transactions contemplated by this Agreement (“Taxes”), excluding taxes based solely upon Durin’s net income, even if Durin did not collect and remit such Taxes on Customer’s behalf. If Durin is assessed fines, penalties or payments for non-payment of Taxes, then Durin will be entitled to full reimbursement of such amounts by Customer.
5.4 Non-Payment; Late Payment.
5.5 Billing Disputes. Any claims or disputes relating to Fees under this Agreement must be sent to Durin in writing within thirty (30) days of the billing date or will be waived by Customer.
6.1 Durin Property.
6.2 Customer Property. Customer owns or controls all rights in and to Customer Content and Customer CRM Data (including any reporting provided by Durin that contains Customer CRM Data in a personally identifiable manner). Durin will not use Customer Content or Customer CRM Data for any purpose other than to: (a) provide Services to Customer as provided in this Agreement and (b) use, publish, display and distribute de-identified, aggregated, non-personally identifiable information derived from such content and data for purposes of improving Durin’s Services, benchmarking and reporting.
6.3 Feedback. The parties agree that any comments, ideas, suggestions or feedback provided by Customer or Authorized Users to Durin with regard to the Services may be used by Durin to develop and improve the Services, Durin Materials, new products and/or new services without compensation, notice or obligation to such Customer or Authorized User.
6.4 Third-Party Trademarks. Any third-party trademarks, product or company names referenced in the Services or Durin Materials are the property of their respective owners and may not be used without the prior written permission of the owner.
6.5 Third-Party Integrations. Customer may choose to use features within the Services that involve integrations with third-party platforms. Use of third-party platforms may be subject to Customer's agreement with the relevant provider and/or additional terms and may enable data exchange between the Services and applicable third-party platforms. Durin does not control and has no liability for third-party platforms, including their security, functionality, operation, availability, or interoperability or how the third-party platform uses data received from the Services. "Third-party platform" means any platform, add-on, service or product provided by any third-party that Customer elects to integrate or enable for use with the Services.
7.1 General Obligations With Respect to End User Privacy. Customer is responsible for all obligations, consents, notices and/or permissions with respect to End Users related to the use of the Services and Durin Technology on any Customer Sites, and which may be required under any Applicable Laws, including, without limitation, the General Data Protection Regulation (EU) 2016/679 (GDPR), U.S. state privacy and data protections acts such as the California Consumer Privacy Act of 2018 and the California Privacy Rights Act of 2020 (CPRA), and the Children’s Online Privacy Protection Act (COPPA).
7.2 Consent, Privacy Notice and Notice of Collection Obligations for Customers. Customer Sites must include the following:
7.3 Data Processing and Protection.
7.4 Children. Customer is expressly prohibited from:
7.5 Sensitive Personal Information. Customer is expressly prohibited from:
7.6 Suspension of Services. In addition to all other rights and remedies under this Agreement, Durin reserves the right to suspend the Services for Customer’s failure to comply with this Section 7, unless and until such failure is remediated.
8.1 By Customer. Customer represents and warrants to Durin that: (a) it has the right to enter into this Agreement, grant all rights granted and perform its obligations under this Agreement; (b) Customer Content and Customer Sites do not include and do not give access via hyperlinks to any property containing materials that are: obscene, infringe or misappropriate third party rights, or contrary to this Agreement (including the Documentation) or Applicable Law; (c) Customer Content, Customer Sites, and Customer’s use of the Services will comply at all times with this Agreement, the Documentation and Applicable Law; (d) its collection, transfer, use and disclosure of all data under this Agreement will not violate the rights of any third-party (including any End Users), Applicable Law or any statements in Customer’s online privacy notice; and (e) Customer will not attempt to identify or re-identify any data Durin provides to Customer in an anonymous or aggregated fashion.
8.2 By Durin. Durin represents that: (a) it has the right to enter this Agreement, grant all rights granted and perform its obligations under this Agreement; and (b) the Services will be provided substantially in accordance with the Documentation. For any breach of this Section 8.2, Durin’s sole liability and Customer’s sole remedy will be re-performance of the Services by Durin or to exercise its termination rights under Section 11.3.
9.1 Customer Indemnification. Customer will defend, indemnify, and hold harmless Durin and its officers, directors, employees and subsidiaries from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) from any claim or demand by a third-party arising out of: (a) Customer’s use of the Services and Durin Materials; (b) Customer’s breach of this Agreement; (c) Customer’s infringement, misappropriation or violation of Applicable Law or any third party rights (including intellectual property, property, privacy or publicity rights); and/or (d) Customer Content, Customer Sites, Customer CRM Data, or any other data provided by Customer in connection with the Services.
9.2 Durin Indemnification. Durin will defend, indemnify, and hold harmless Customer and its officers, directors, employees, and subsidiaries from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) from any claim or demand by a third-party that the Services or Durin Materials, used in accordance with this Agreement, violates, infringes, and/or misappropriate any copyright, trade secret, U.S. patent or trademark rights. Durin will not have any liability under this Section 9.2 arising from: (a) unauthorized use or modifications made to the Services or Durin Materials; or (b) the combination of the Services or Durin Materials with any third-party software, process, or service not provided by Durin. If Durin reasonably believes that the Services or Durin Materials could become subject to a third party claim of infringement, Durin may in its sole discretion: (i) modify the Services or Durin Materials so that it no longer infringes or misappropriates; (ii) obtain a license for Customer’s continued use of the affected Services or Durin Materials in accordance with this Agreement, or (iii) terminate the affected Services or this Agreement upon 30 days’ prior written notice and provide a refund of any pre-paid fees applicable to any period following the effective date of termination. Durin’s indemnification obligations in this Section 9.2 will be Durin’s sole liability and Customer’s sole remedy for any claims that the Services or Durin Materials violate, infringe, or misappropriate any third-party intellectual property rights.
9.3 Indemnification Process. The indemnified party will promptly notify the indemnifying party of the claim and cooperate with the indemnifying party in defending the claim. The indemnifying party will have full control and authority over the defense, except that: (a) any settlement requiring the indemnified party to admit liability or pay any amount (not covered by the indemnifying party) requires prior written consent of the indemnified party, not to be unreasonably withheld or delayed; and (b) the indemnified party may join in the defense with its own counsel at its own expense.
10.1 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS STATED IN SECTION 8, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, DURIN EXPRESSLY DISCLAIMS AND MAKES NO REPRESENTATION, WARRANTY, CONDITION, OR OTHER CONTRACTUAL TERM (COLLECTIVELY, “PROMISES”) OF ANY KIND ABOUT THE SERVICES AND DURIN MATERIALS WHETHER EXPRESS, IMPLIED, ARISING BY STATUTE, COMMON LAW OR CUSTOM AND: (A) DURIN EXPRESSLY DISCLAIMS ALL IMPLIED PROMISES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY, TITLE, AND NON- INFRINGEMENT; (B) DURIN DOES NOT PROMISE NON-INTERFERENCE WITH THE ENJOYMENT OF THE SERVICES OR THAT THE SERVICES WILL BE ERROR-FREE, SECURE OR UNINTERRUPTED; AND (C) DURIN MAKES NO PROMISES REGARDING THE RESULTS CUSTOMER WILL OBTAIN THROUGH THE USE OF THE SERVICES.
10.2 DURIN WILL HAVE NO LIABILITY TO CUSTOMER IN CONNECTION WITH (A) CUSTOMER’S FAILURE TO PROVIDE NOTICES TO, OR OBTAIN CONSENTS FROM, ITS END USERS REGARDING ITS DATA COLLECTION AND PRIVACY NOTICE PRACTICES OR THE SERVICES DESCRIBED HEREIN WHICH ARE REQUIRED BY APPLICABLE LAW; (B) CUSTOMER’S COLLECTION, USE OR DISCLOSURE OF DATA AS CONTEMPLATED IN THIS AGREEMENT; OR (C) DATA SECURITY OR DATA USE IF DURIN ACTS IN ACCORDANCE WITH CUSTOMER’S INSTRUCTIONS.
10.3 Disclaimer of Damages. DURIN WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS (WHETHER DIRECT OR INDIRECT) OR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL, OR EXEMPLARY DAMAGES RELATED TO THIS AGREEMENT, EVEN IF DURIN IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
10.4 Cap on Liability. UNDER NO CIRCUMSTANCES WILL DURIN’S COLLECTIVE TOTAL LIABILITY ARISING OUT THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO DURIN UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM.
10.5 Basis of the Bargain. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES ALLOCATES THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES, IS REFLECTED IN THE PRICING OFFERED TO CUSTOMER, AND AS SUCH IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. THESE PROVISIONS ARE SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. IF ANY LIMITATION OF LIABILITY IN THIS AGREEMENT IS FOUND UNENFORCEABLE, LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE LIMITATIONS IN THIS SECTION 10 WILL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
11.1 Term and Renewal. This Agreement will remain in full force and effect while Customer uses the Services. The “Initial Term” of each Package will be set forth in Customer’s Order Form or Insertion Order and, unless terminated in accordance with this Agreement, will automatically renew for additional, successive terms of the same duration (each a “Renewal Term” and together with the “Initial Term”, the “Term”). The renewal pricing set forth in Customer’s Order Form will apply, subject to any adjustment as specified in Section 5.1. If renewal pricing is not included in Customer’s Order Form, then Durin's standard pricing available on the date of renewal will apply.
11.2 Termination and Downgrades. Customer may terminate (cancel) or downgrade a Package by providing Durin written notice to support@durin.com as follows:
All terminations (cancellations) and downgrades will take effect at the end of the then-current Term. Customer will not be entitled to a refund of pre-paid Fees.
11.3 Termination for Cause. Either party may terminate this Agreement for cause, as to any or all Services: (a) immediately, if the other party fails to cure a material breach within 30 days’ of receiving written notice from the non-breaching party, or (b) immediately, to the extent permissible under Applicable Law, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation or assignment for the benefit of creditors. This Agreement may not otherwise be terminated by Customer prior to the end of the Term.
11.4 Suspension for Prohibited Acts. Durin may suspend Customer and its Authorized Users’ access to any or all Services, in whole or in part, without notice, if: (a) Durin receives a claim, complaint, or notice that Customer Content or Customer Sites violate, infringe or misappropriate any third-party rights (e.g., a DMCA notice); or (b) Customer or its Authorized Users use the Services or Durin Materials in violation of Applicable Law.
11.5 Durin’s Changes to the Services. Durin reserves the right to modify the Services or discontinue temporarily or permanently, some or all of the Services, with respect to any or all Customers, at any time without notice. Customer agrees that Durin will not be liable to Customer for any modification, or discontinuance of the Services, although if Customer has selected a paid Package or other prepaid Services, and Durin discontinues the Services, Durin may, in its sole discretion, provide Customer with a credit, refund, discount or other form of consideration.
11.6 Post-Termination Obligations. Upon termination of this Agreement for any reason:
Following termination of this Agreement, Durin reserves the right to permanently delete all Customer CRM Data stored on the Durin Services without further notice to Customer.
11.7 Survival. The following Sections will survive expiration or termination of this Agreement: Sections 1,4 -14 (as applicable).
Confidential Information includes all information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether of a technical, business, or other nature that the Receiving Party knows or has reason to know is the confidential, proprietary or trade secret information of the Disclosing Party. Confidential Information does not include information that: (a) was lawfully known to the Receiving Party prior to receiving the same from the Disclosing Party in connection with this Agreement; (b) is independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party; (c) is lawfully acquired by the Receiving Party from another source without restriction as to use; or (d) is or becomes part of the public domain through no act or omission of the Receiving Party. Each Receiving Party will (i) use the Disclosing Party’s Confidential Information solely for the purpose for which it is provided and as permitted under this Agreement; (ii) not disclose the Disclosing Party’s Confidential Information to a third-party unless the third-party must access the Confidential Information to perform in accordance with this Agreement and the third-party has agreed to confidentiality terms no less protective than those set forth in this Section 12; and (iii) maintain the confidentiality of, and protect from unauthorized use and disclosure, the Disclosing Party’s Confidential Information to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature. If a Receiving Party is required by Applicable Law to disclose the Confidential Information of the Disclosing Party, such Receiving Party must give prompt written notice (except where prohibited by Applicable Law) of such requirement to the Disclosing Party before such disclosure and reasonably assist the Disclosing Party, at Disclosing Party’s cost, in obtaining an order protecting the Confidential Information from public disclosure. The obligations in this Section 12 will survive for three (3) years after the expiration or termination of this Agreement. Notwithstanding the foregoing, with respect to a Disclosing Party’s trade secrets, the Receiving Party’s obligations under this Agreement remain in effect if the Confidential Information remains a trade secret under the Uniform Trade Secrets Act. Durin may disclose the name of Customer and existence of this Agreement as required by Applicable Law, court or regulatory order, audit or investigation.
PLEASE READ THIS SECTION CAREFULLY, AS IT INVOLVES A WAIVER OF CERTAIN RIGHTS TO BRING LEGAL PROCEEDINGS, INCLUDING AS A CLASS ACTION FOR RESIDENTS OF THE U.S.
13.1 Please contact Durin first! Durin wants to address Customer's concerns without resorting to formal legal proceedings. Before filing a claim, Customer agrees to try to resolve the dispute informally by contacting Durin first through support@durin.com, or via Customer’s designated Account Manager.
13.2 Venue for disputes. Customer and Durin agree that any judicial proceeding to resolve claims relating to this Agreement or the Services will be brought in the federal or state courts located in San Francisco County, California, subject to the mandatory arbitration provisions below. Customer and Durin consent to venue and personal jurisdiction in such courts. Notwithstanding the above, Customer and Durin agree that Customer alternatively may attend any arbitration proceedings telephonically or videographically, in which case Durin will do so as well.
U.S. RESIDENTS ALSO AGREE TO THE FOLLOWING MANDATORY ARBITRATION AND CLASS ACTION WAIVER:
13.3 Arbitration.
13.4 Class Action Waiver. Both parties agree to resolve any disputes, claims, or controversies on an individual basis, and that any claims arising out of, relating to or in connection with this Agreement (such as with respect to their validity or enforceability), the Durin Materials, or the Services provided by Durin, will be brought in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding.
13.5 Controlling Law. This Agreement is governed by the law of the State of California without regard to conflicts of law principles.
14.1 Assignment. Customer may not assign this Agreement without the prior written consent of Durin; provided, however, Customer may assign this Agreement with prior written notice to Durin to an acquirer of all or substantially all of its assets or stock. Any other attempt to transfer or assign is void. Durin may assign this Agreement and delegate any or all its obligations hereunder. This Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
14.2 Export Control Laws. The Services and Durin Materials may be subject to United States export control laws, including the U.S. Export Administration Act or other import or export regulations in other countries. If applicable, Customer must comply with such regulations and is responsible for obtaining any related licenses.
14.3 Amendments. Durin reserves the right to revise this Agreement and Services, and Customer’s rights and obligations are at all times subject to this Agreement then posted at https://www.durin.co. Customer is responsible for checking for updates online, and continued use of the Services after an update constitutes acceptance of this Agreement.
14.4 Independent Parties. Durin is an independent contractor and not an agent of Customer in the performance of this Agreement.
14.5 Third-Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective permitted successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other person.
14.6 Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding the Services and will supersede all prior agreements between the parties (including any non-disclosure agreement executed prior to this Agreement), whether written or oral. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement.
14.7 Force Majeure. Durin will not be liable for any delay or failure to perform as required by this Agreement because of any cause or condition beyond Durin’s reasonable control.
14.8 Severability. If any portion of this Agreement is held invalid or unenforceable, such invalidity or enforceability will not affect the other provisions of this Agreement, which will remain in full force and effect, and the invalid or unenforceable portion will be given effect to the greatest extent possible.
14.9 Waiver. The failure of a party to require performance of any provision will not affect that party’s right to require performance at any time thereafter, nor will a waiver of any breach or default of this Agreement, or waiver of any provision of this Agreement, constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
14.10 Third-Party Website Disclaimer. Links to third-party websites from the Services do not imply endorsement by Durin of any products, services or information presented therein, nor does Durin warrant or otherwise guarantee the accuracy of the information contained on them.
14.11 Order of Precedence. In the event of a conflict or inconsistency between any of the terms of the following documents, the following order of precedence shall control: (a) Insertion Order and Order Form; (b) relevant Services Addendum; and (c) these Terms of Service.
14.12 Notice. Except as otherwise provided in this Agreement, all notices to Durin must be delivered in writing by courier, certified or registered mail (postage prepaid and return receipt requested):
Durin, Inc.
201 California Street
5th Floor, Suite 500
San Francisco, CA 94111
U.S.A.
Attn: Legal Department
With an email copy to: legal@durin.co
Notices to Customer will be sent to the email address on file and/or posted through the Services and are deemed effective when sent or posted.
THE FOLLOWING ADDITIONAL TERMS AND CONDITIONS WILL APPLY TO THE SERVICES, AS APPLICABLE:
Durin Services
View Durin Email Services Addendum
View Durin Account-Based Marketing (ABM) Services Addendum
View Durin Contact Data Services Addendum
View Durin Sales Automation Services Addendum
View Durin Media Services Addendum
Durin Data Privacy
View Durin Data Protection Addendum
View Durin CCPA Service Provider Addendum