Customer Terms of Use

Intellectual Property Rights

Unless otherwise specified within an Order, Customer shall have rights of ownership with regards to only the Content created explicitly for the Customer. However, Customer shall have no such rights with regards to the Tempesta Platform or other technologies provided by Tempesta to deliver such Content to Customer. Any trademarks appearing in Content and within the technologies used to deliver such Content belong to their respective owners, and this Agreement does not confer any rights under United States Trademark Law for Customer to use such trademarks other than as contained with the Content. 

Customer hereby represents and warrants that Customer owns all rights, title and interest in, or has lawful rights to authorize Tempesta to use, copy, modify and make derivative works of all Customer Content uploaded onto the Tempesta Platform or otherwise provided to Tempesta for incorporation into the Content. Customer hereby indemnifies and holds harmless Tempesta and its owners, officers, employees, agents, subcontractors and other representatives from and against any claim by, or liability to, any third party (and all associated damages, liabilities, debts, costs and expenses, including without limitation legal fees and expenses) arising out of or relating to (i) Customer’s breach of the above representations and warranties; or (ii) Customer’s provision or Tempesta’s use of the Customer Content for purposes of providing the Services 

Licensed Images – Customer acknowledges that Tempesta facilitates licensed, royalty-free images from one or more third-party providers. Customer further acknowledges that it is the Customer’s responsibility to follow the licensing requirements as outlined by the third-party provider. Tempesta makes available the provider’s name with each image, so that the Customer can easily ascertain the licensing requirements of said third party provider. Tempesta shall not have any liability for Customer’s failure to comply with a third-party provider’s licensing requirements, and Customer shall indemnify, defend and hold Tempesta harmless with respect thereto. 

Social Media – Customer acknowledges that it is their responsibility to review and approve social media Content, whether created by the Customer or Tempesta, prior to its publication. Tempesta Media is not liable for any Content published on social media by Customer, and Customer shall indemnify, defend and hold Tempesta harmless with respect thereto. 

Integrations

Other Services. Certain other services (“Other Services”), such as integrations and apps, may be made available to Customer through forums for their integration with the Tempesta Platform. These Other Services are governed by their own terms and privacy policies and Customer agrees that Tempesta is not responsible for Customer’s use of these Other Services where Customer chooses to enable these Other Services and integrate them into the Tempesta Platform. By enabling the Other Services, Customer understands and agrees that Tempesta does not provide any warranties for Other Services and Tempesta is not liable for any damage or loss caused or alleged to be caused by or in connection with Customer’s enablement, access or use of any such Other Services, or Customer’s reliance on the privacy practices, data security processes or other policies of such Other Services. Customer understands that Tempesta is not responsible for providing technical support for Other Services or for the data hosting and data transfer practices followed by providers of such Other Services. To this extent, Customer agrees to address any comments, queries, complaints or feedback about such Other Services with the respective developers or publishers as specified in those forums. 

Third-Party Content. The Services may also contain links to websites, resources and/or other content provided by third parties (the “Third-Party Content”). Tempesta does not endorse any Third-Party Content. Customer agrees that Tempesta is not responsible for the quality, performance, reliability or security of any Third-Party Content, and that Tempesta is not responsible for any damages in connection with Customer’s access or use of any Third-Party Content, or Customer’s reliance on the privacy practices, data security measures or other policies of any Third-Party Content. Customer acknowledges and agrees that each Third-Party Content is governed by that third-party provider’s terms and privacy policy and that Tempesta does not have any control over such services or the Third-Party Content. To this extent, Customer agrees to address any comments, queries, complaints or feedback regarding the Third-Party Content with the third party providing them. 

Digital Millennium Copyright Act Compliance

Tempesta adheres to the terms of the United States’ Digital Millennium Copyright Act of 1998 (DMCA) as found under United States law (17 USC. В§ 512). If any party believes that their copyrights are infringed by Content as provided by Tempesta, such party should provide Tempesta with a written notice via mail, fax, or email that contains the following information: 

An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; 

A description of the copyrighted work that claimed to have been infringed; 

A description of where the infringing material is located with Content; 

A contact address, telephone number, and email address; 

A statement that such claim is under the good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; AND 

A declaration signed by the party, made under penalty of perjury, that the above information in such notice is accurate and that the party is either the copyright owner or authorized to act on the copyright owner’s behalf. 

Tempesta will only respond to such notices that substantially comply with the above requirements. Tempesta will investigate claims and then notify such parties by the method of contact provided. 

Limitations of Warranty and Liability

Customer agrees to the following with regards to Tempesta’s warranties and limits of liability as related to Customer’s use of the Content: 

No Warranties – Tempesta disclaims all warranties, express or implied, with respect to the use of the Tempesta Platform and the Content, including, but not limited to, any implied warranties of merchantability and fitness for a particular purpose. 

Except as expressly provided herein with respect to Rank, Tempesta disclaims all warranties, express or implied, with respect to the use of the Tempesta Platform and the Content, including, but not limited to, any implied warranties of merchantability and fitness for a particular purpose. 

No Guarantees – Tempesta makes no guarantees with regards to the effect of the Content on Customer or its business. 

No Liability – Customer is solely liable for Customer’s use of the Content. Tempesta is not liable under any legal theory for damages of any type that Customer may suffer due to Customer’s use of the Content as well as from Customer’s inability to use the Content, including, but not limited to, loss of revenue or loss of opportunity. 

Indemnity

Customer shall indemnify and hold harmless Tempesta, Tempesta’s officers, and affiliates as necessary with regard to any legal action or damage claims that are a result of Customer’s use of the Services or the Content. 

Disclaimer of Damages

FOR ALL EVENTS AND CIRCUMSTANCES, TEMPESTA AND ITS AFFILIATES’ AGGREGATE AND CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE USE OF TEMPESTA’S CONTENT, INCLUDING WITHOUT LIMITATION ON ACCOUNT OF PERFORMANCE OR NON-PERFORMANCE OF OBLIGATIONS, REGARDLESS OF THE FORM OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STATUTE OR OTHERWISE WILL BE LIMITED TO CANCELLATION OF THIS AGREEMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT WILL TEMPESTA OR ITS AFFILIATES BE LIABLE TO CUSTOMER FOR ANY CLAIM BASED UPON A THIRD–PARTY CLAIM; ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER ARISING IN TORT, CONTRACT, OR OTHERWISE; OR FOR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY MALFUNCTIONS, DELAYS, LOSS OF DATA, LOST PROFITS, LOST SAVINGS, INTERRUPTION OF SERVICE, LOSS OF BUSINESS OR ANTICIPATORY PROFITS, EVEN IF TEMPESTA OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AT ALL TIMES, THE SOLE EXTENT OF TEMPESTA’S LIABILITY WILL BE LIMITED TO THE AMOUNTS CUSTOMER HAS PAID TO TEMPESTA WITHIN THE MONTH PRIOR TO THE EVENT GIVING RISE TO LIABILITY. 

Termination/Expiration

The parties agree to the following with regards to termination/expiration of this Agreement: 

Termination by Customer – Prior to Customer’s Subscription License renewal or within the period of notice for a Price Increase, Customer may terminate this Agreement with written notice to Tempesta at no further obligation or penalty effective as of the end of the current Subscription Term. Thereafter, Customer may terminate at any time, but Customer remains fully liable for payment of any Subscription Fees due through the end of the current Subscription Term. 

Termination by Tempesta Due to Customer’s Breach – Customer understands and agrees that Tempesta may terminate this Agreement immediately without prior notice should Customer breach the terms of this Agreement. Customer shall remain liable for payment of all Subscription Fees until the end of the current Subscription Term. 

Termination by Tempesta Due for Convenience – Customer understands and agrees that Tempesta may terminate this Agreement with five (5) days’ written notice to Customer. Customer shall remain liable for payment of all Subscription Fees up through the date of actual termination. 

Effect of Termination/Expiration – Customer understands and agrees that once this Agreement ends, Customer will no longer be able to access the Content and/or further use the Content provided by Customer. It is the Customer’s obligation to download any Customer-owned Content prior to termination. 

Non-Disclosure, Non-Solicitation, and Non-Disparagement

Non-Disclosure – Each party (a “disclosing party”) may, from time to time, disclose to the other (a “receiving party”) confidential information relating to its business and affairs, the Tempesta Platform, or the Services (collectively, “Confidential Information”). The receiving party shall (i) avoid disclosure of the other’s Confidential Information to any third party without the written consent of the disclosing party, except that Tempesta may provide the Confidential Information to independent contractors so long as such independent contractors agree to protect such Confidential Information substantially as set forth herein; (ii) not use the other’s Confidential Information except for provision of the Services; and (iii) use at least the same degree of care to protect the other’s Confidential Information as it uses with respect to its own Confidential Information and in no event less than a reasonable degree of care. Nothing shall prohibit Tempesta from using the general knowledge accrued in providing the Services for any purpose at Tempesta’s sole discretion. The following is not Confidential Information: (i) information in the public domain through no breach or fault of the receiving party; (ii) information already known to the receiving party prior to disclosure by the disclosing party; (iii) information received by the receiving party rightfully from a third party; (iv) information independently developed by the receiving party; or (v) information required to be disclosed by law. 

Non-Solicitation – For a period of eighteen (18) months after the expiration or termination of this Agreement, Customer shall not hire, solicit, or induce or assist any third party in soliciting or inducing any employee or contractor of Tempesta that Customer learned about through the performance of this Agreement, to leave his or her employment with Tempesta. In the event Customer breaches its obligations, Customer shall pay Tempesta, as liquidated damages and not as a penalty, an amount equal to one hundred percent of such employee’s first-year salary with the Customer or third party (including bonuses and deferred income of any kind) within thirty (30) days of each such breach. For the purposes of determining “solicitation,” the advertisement of employment opportunities by Customer in any public forum (including magazines, trade journals, publicly accessible internet sites, classified advertisements, or job fairs open to the public) shall not be considered “solicitation,” and the hiring of an individual as a result of his or her response to such a general employment advertisement or in response to his or her unsolicited employment inquiry shall not constitute a breach of this Agreement or result in any liquidated damages. 

Non-Disparagement – It is expressly agreed to by both parties that neither shall publicly disparage or speak negatively about the other party. 

The parties agree that monetary damages may not be an adequate remedy for breach of the Non-Disclosure, Non-Solicitation, and Non-Disparagement terms of this Agreement and that an aggrieved party may, without limitation to other remedies available, apply to any competent court of law or equity for specific performance or injunctive relief to enforce these provisions (without first proceeding to arbitration) 

Publicity

Notwithstanding anything herein to the contrary, Customer grants Tempesta the right to display Customer’s logo and/or trade name in Tempesta’s advertising, including display on Tempesta’s website, signifying that Customer is a customer of Tempesta. Customer may opt out of being included in such publicity by sending written notice to CustomerSupport@TempestaMedia.com. 

Notices

Customer understands and agrees that Customer will receive all notices regarding this Agreement in written form, either by standard mail or email delivery. 

No Other Relationship or Legal Interest

The parties agree that this Agreement does not create any other relationship or legal interest between Customer and Tempesta, including, but not limited to, any sales contract, license, title, partnership, or other legal right, except as specified by this Agreement. 

Invalidity of Provision

The parties agree that even if a court invalidates a provision of this Agreement, the remaining Agreement provisions are still valid and remain in full effect. 

Choice of Law

The parties agree that the laws of Cook County and the State of Indiana, without regard to its conflict of law principles, are to be used with regards to any interactions with the Content as well as with Tempesta.

Arbitration of Disputes

The parties agree that if the parties cannot amicably resolve any legal dispute or damage claim that should arise from Customer’s interactions with the Content, Customer agrees to resolve any such dispute or damage claim by arbitration. The arbitration proceeding shall be conducted in Michigan City, Indiana, in accordance with the Commercial Arbitration rules of the American Arbitration Association, then in effect with one (1) arbitrator to be selected by mutual agreement of both Customer and us. If the parties cannot agree on an arbitrator, then the American Arbitration Association shall select an arbitrator from the National Panel of Arbitrators. The laws of the State of Indiana shall apply to the arbitration proceedings. The prevailing party in any such proceeding shall be entitled to recover its reasonable attorneys’ fees and costs incurred with respect to such dispute. The parties agree that the arbitrator cannot award punitive damages to of the parties and to be bound by the arbitrator’s findings. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. 

Impossibility

The parties agree that to the extent either Customer or Tempesta cannot adhere to the terms of this Agreement due to circumstances outside either party’s control, such responsibility is excused until the circumstances preventing fulfillment of such responsibility are removed. 

Waiver

Customer understands and agrees that any waiver of Customer’s adherence to the terms of this Agreement is not considered a waiver of Customer’s future adherence to the terms of this Agreement. 

Assignment

Customer may not assign this Agreement to any other party without the express written permission of Tempesta, which shall not be unreasonably withheld. 

Transfer of Ownership

Customer agrees that even if Tempesta is merged with or is acquired by another company that assumes control of Tempesta, this Agreement still continues in full force and effect. 

Modification

Tempesta may amend this Agreement at any time and in their sole discretion by posting the revised terms on the Tempesta Platform and/or the Tempesta Media website. Unless otherwise stated in such revision, the revised terms will take effect when they are posted. Tempesta will reasonably endeavor to provide Customer notice of any such changes. However, Customer is responsible for reviewing the notice and any changes. This Agreement may not be otherwise amended except in writing signed by both parties. Customer’s continued use of the Tempesta Platform and Services following changes to the Agreement will constitute acceptance of changes or modifications to this Agreement. 

Headings

The Parties understand and agree that the headings in this Agreement are included only as a matter of convenience and in no way define, limit or extend the scope of this Agreement or any of its provisions. 

Entire Agreement

This Agreement, and any corresponding Order, constitute the entire agreement between the parties in connection with the subject matter hereof and supersedes all agreements, proposals, representations and other understandings, oral or written, of the parties and any current or subsequent purchase order(s) provided by Customer. 

Digital Signature

By using the Service, Customer acknowledges that it agrees to these terms and conditions, and that it waives any and all defenses with regards to physical signature of this Agreement.