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Terms of Use Agreement

By accessing or using BandwidthFinderSM or its RAPID BandwidthFinderSM API you agree to all Terms of this Agreement.

 

These Terms of Use (together with any applicable order form issued hereunder, the “Agreement”), effective as of the date set forth on an applicable order form, whether electronic or physical, (“Effective Date”), is between Masterstream, Inc., a Delaware corporation, with an address at 22324 Temescal Canyon Rd, Suite 200, Corona, CA 92883 (herein “MSI” or “we”), and the subscriber named in such order form (herein “you” or “your”).  You and MSI agree to all terms and conditions (herein “Terms”) as follows:

 

  1. Definitions. The capitalized terms in this Terms of Use Agreement shall be defined as follows:

 

  1. “Service”, “Services” or “Software” shall mean, collectively, the BandwidthFinderSM application software or its API(s).
  2. “Content” shall mean the resident text, graphics, logos, images, video, audio exposed within the Service including the results returned by the Service in response to a query submitted to the Service (“Lookup”).
  3. “Customer Content” shall mean all content created through or submitted to the Service by you in the course of using the Service.
  4. “Lookup” shall mean the submission of a physical address or other value to the Service for the purpose of receiving additional Content.
  5. Governing Terms. These Terms govern your access to and use of Services from MSI. In the event that you access the Service, your access to the Service and Content are subject to the Terms expressed herein. In the event of any conflict between the Terms and any separate agreement with MSI, the Terms and conditions of the separate agreement will prevail and govern.
  6. Ownership. All Content included in this Service is either the property of MSI or is used by permission of the respective Content owners. The Software and underlying code used to provide the Service to you are the property of MSI and protected by U.S. and international copyright laws. Any reproduction, modification, or republication of the Content on this Service, unless otherwise granted, is strictly prohibited. All rights, titles, and interests in and to the Services and Content are and will remain the exclusive property of MSI and its licensors.
  7. Lookups. Each Lookup submitted to the Service is counted against your purchased or allocated Lookup quantity even if you have previously performed the same Lookup. You are responsible for any Lookups performed on your account, even if unintended or accidental. For example, if you create an automated call to the API, and you have a loop in your code causing unintended calls to be made to the API, you will still be responsible for each Lookup made. This could result in significant charges to your account. Please ensure that your code is correct prior to automating any calls to the API.
  8. Accuracy of Lookup Results. MSI is a non-exclusive vendor of multiple telecom service providers. All data used to provide the Service is supplied to MSI by those telecom service providers and third-party licensors, whether it is stored by MSI or acquired via API transactions. As such, MSI does not, and cannot, attest to its accuracy or specific suitability for any purpose.
  9. Use Restrictions. You agree not to do any of the following: (i) sell, rent, sub-license, or lease access to the Service to provide services to third parties without the express written permission of MSI; (ii) reproduce, modify, make derivative works of, use, make, have made, sell, or offer to sell MSI's Services, except as otherwise expressly agreed in writing between you and MSI; (iii) disassemble, decompile, or reverse-engineer the Services; (iv) impersonate any other person or entity, whether actual or fictitious, including impersonating an employee of MSI; (v) use any Content, including any personally identifiable information included within the Content, in violation of any rights of any third-parties, including such rights arising under any applicable privacy policies or agreements; (vi) use any Content in violation of any applicable law or regulation, or; (vii) remove or alter any trademark, logo, copyright, or other proprietary notices, legends, symbols, or labels in the Software.

MSI has the right to investigate and prosecute violations of any of the above. MSI may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that MSI has no obligation to monitor your access to or use of the Service, Software, or Content, but has the right to do so for the purpose of providing the Service, Software and Content, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency, or other governmental body.

  1. Modifications to Services and Content. MSI reserves the right to modify or discontinue any part of the Services and Content at any time and without notice.  In the event that any such modification or discontinuance materially reduces the functionality of the Services, you may terminate this Agreement upon at least thirty (30) days’ prior written notice to MSI, and MSI shall provide you with a pro-rated refund of any pre-paid fees for Services not performed within 30 days of the effective date of termination.  From time to time, MSI personnel may access the Service via your account in order to maintain or improve the Service, including providing you with assistance with technical or billing issues. You hereby acknowledge and consent to such access.

You further acknowledge that MSI may change or deprecate SDKs and API endpoints from time to time. Although MSI endeavors to avoid changes to the Service that are not backwards compatible, if any such changes become necessary MSI will attempt to notify you via the Service or email at least thirty (30) days prior to the implementation of any such incompatible changes to the Service.

  1. Service Availability. MSI will use commercially reasonable efforts to maintain the Service availability to send and receive data, subject to downtimes resulting from maintenance, repairs and upgrades. MSI will attempt to notify you electronically via the Service or email in advance of any planned downtime. Notwithstanding the foregoing, MSI will not be liable for any failures in the Service or any other problems which are related to Customer Content or outages to any telecommunications or public Internet backbones, networks or servers, or other equipment or service outside of MSI’s facilities or control.
  2. Service Support. MSI will provide support via email for your use of the Service during MSI’s regular business hours. You agree that MSI is not responsible to provide support for any issues resulting from problems, errors or inquiries related to your Internet connectivity or hardware.
  3. Customer Content. You have sole responsibility for Customer Content. You acknowledge and agree that MSI will not assume any, and hereby disclaims all, responsibility and liability for Customer Content and any modifications made thereto. You hereby grant MSI a worldwide, non-exclusive, royalty-free, fully paid-up license to use, reproduce, perform, display, modify, and distribute the Customer Content in connection with providing the Services to you. 
  4. Limited Retention of Content. Your access to some Content provided through the Service in response to Lookups will expire after one calendar year from the time the Lookup was performed. Your ability to access such Content will require the use of new Lookups when such Content expires.
  5. Prohibited Access to Content. The Service and Content are not available to competitors of MSI. As such, the following named companies, their affiliates, subsidiaries, agents, investment or referral Distributors, inter alia, shall be prohibited from having access to the Services or any content derived therefrom: GeoResults, ShareTracker, CarrierFinder, Telecom Asset Management, New England Fiber, Inc (DBA “NEF”), FiberLocator, CCMI, TeleGeography, Connected2Fiber.

In addition to these named companies, any existing or future business entities focused on telecommunications infrastructure location service, fiber location services, or other “last-mile” technology or serviceability location services shall be considered competitors to MSI and shall be prohibited from accessing the Services.  By ordering or using the Service, you are certifying that you are not a competitor of MSI and that you will not share or otherwise disclose the Service, Software, or Content with any aforementioned company or competitor of MSI.

  1. Legal Notice. The export and re-export of some Content may be subject to the United States Export Administration Regulations. Therefore, no Content derived from the Services may be exported or re-exported in any form whatsoever to China, Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria, or any country to which the United States has embargoed the export of goods.

By using the Service you are certifying that you will not use the Services or Content for subversive or illegal activities, whether foreign or domestic. MSI reserves the right to, and will notify the appropriate local, state, and/or federal authorities if MSI, in its sole discretion believes or has reason to believe, or even suspects that any of MSI’s Services or Content are being misused in any manner, or are being used for subversive or illegal activities, whether foreign or domestic. By using the Service you agree to hold harmless MSI and its officers, employees and agents for reporting such information.

  1. Private Security Credentials. Any and all login credentials (usernames, passwords, tokens, secrets, and other identifying values for authentication as the case may be) that you use to access the Service, Software, and Content are personal to you. You should not share or disclose your private login credentials with anyone who you do not trust. Disclosure of your login credentials to any party, including those within your organization, effectively authorizes that party to act as an agent on your behalf. You are responsible for safeguarding your login credentials, and you agree not to allow any third party to access and use the Service, Software, and/or Content using your login credentials, unless specifically granted herein. MSI recommends creating credentials that cannot be easily guessed. You agree to take sole responsibility for any activities or actions under your credentials, whether or not you have authorized such activities or actions. You will immediately notify MSI and change your credentials, or request a change to your credentials, if any unauthorized use of your credentials is suspected.
  2. Labeling and Attribution. If you use an API to access the Service via a web interface you must attribute the Service to MSI on the web interface in close proximity to either i) the form for submitting Lookups, or ii) the results returned by the Service if displayed via web interface.  Your attribution of the Service may be in the form of an approved MSI logo, image, or statement.
  3. External Links. MSI may provide links on the Service to other websites that may or may not be affiliated with, under the control of, or otherwise maintained by MSI. MSI does not control those third parties or their services, and you agree that MSI will not be liable to you in any way for your use of such services. MSI does not endorse or make any representations or warranties about third party services or any information, software, or other products or services found there.
  4. Hyperlinks To The Service. You are granted a limited, nonexclusive right to create a "hypertext" link to the Service provided that such link does not portray MSI or any of its other products or services in a false, misleading, derogatory, or otherwise defamatory manner. This limited right may be revoked at any time, for any reason, whatsoever. You may not use, frame, or utilize framing techniques to enclose any MSI service mark, trademark, logo, trade name or other proprietary information, or any form contained on a page without the express written consent of MSI.
  5. Termination. If you violate any of these Terms, your authorization to use the Service, Software, Content, and your uploaded data will be terminated. You agree that fees paid are non-refundable in the event of the termination of your account based on a violation of these Terms. A cure period may be extended depending upon the severity of the violation, but this will be at MSI’s sole discretion.
  6. Billing. Services will be billed to a credit card or other prearranged methods of payment automatically. Establishment of these services are contingent upon receipt of initial payment and payment information. Subsequent payments will be automatically charged to the credit card on file at a given interval either monthly, annually, or according to usage, as established at time of order. In some cases, payment may be due early in order to allow services to continue. For example, if your billing interval was monthly and according to usage, and you purchased 500 Lookups and used them in the first week, your method of payment would be charged to repurchase your Lookups to allow continuation of the Service. In this case your subsequent billing dates will be reset based on this repurchase date. Recurring billing can be cancelled with seventy-two (72) hours’ notice by MSI. Any refund requests for recurring or automated charges must be made in strict compliance with MSI’s Refund Policy.

 

  1. Payment Terms, Late Fees and Delinquency. If you and MSI have agreed to a billing arrangement that requires invoicing, invoices must be paid in full within 30 days of receipt. Any amount due but unpaid after 30 days will be assessed a Late Fee of 1.5% of the outstanding balance. Any amount due that remains unpaid for more than 60 days will constitute a breach of the Terms of this agreement and will result in the suspension or termination of your Service and possible legal action. If you require invoices to be sent using any other method, and MSI agrees to accommodate your preferred method, an Administration Fee of $25 will be added to each such invoice.
  2. Chargebacks & Bounced Checks. You agree to contact MSI before disputing any charge against the method of payment specified, which is commonly referred to as a "chargeback". Chargebacks on credit cards or any other form of payment provided to MSI will be researched and disputed if, in MSI's reasonable opinion, the chargeback is not justified. You acknowledge and agree that if services have been performed by MSI, chargebacks are unethical and unlawful. Any chargeback will automatically invoke a $100 Administration and Recovery Fee, without exception. This fee, along with any disputed charges, will result in a negative balance on your account which must be paid in full before services on the account can be reactivated. If these fees are not paid in full within 30 days of being assessed MSI may remit your information to a third party for the purposes of recovering the debt or for the pursuit of civil or criminal proceedings against you.
  3. Refund Policy. You may request a refund within 60 days of purchase date. Refunds will be granted on any recurring charges and unused paid Lookups.
  4. Use at Your Own Risk. Your access to and use of the Service and Content is at your own risk. MSI will have no responsibility for any harm to your computer system, loss of data, or other harm that results from your access to or use of the Service or Content.
  5. Provided “As-Is”. THE SERVICE, SOFTWARE, AND CONTENT ARE PROVIDED "AS IS", WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, MSI EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WHILE TAKING MEASURES TO ENSURE REASONABLE ACCURACY, SECURITY, AND AVAILABILITY OF THE SOFTWARE, MSI MAKES NO WARRANTY THAT THE SERVICE, SOFTWARE, OR CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. MSI MAKES NO WARRANTY REGARDING THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR RELIABILITY OF ANY DATA OR INFORMATION OBTAINED THROUGH THE SERVICE, SOFTWARE, OR CONTENT.
  6. Indemnity. You agree to defend, indemnify, and hold harmless MSI, its officers, directors, employees, and agents, from and against any claims, liabilities, damages, losses, and expenses (including reasonable legal and accounting fees), arising out of your violation of these Terms.
  7. Limitation of Liability. EXCEPT IN THE CASE OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES RESULTING FROM YOUR ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, THE SERVICE OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE PARTIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.
  8. Dispute Resolution/Arbitration. Any tax or legal claim related to your use of the Service or the application of these Terms will be governed by the laws of the State of California without regard to its choice of law provisions. Additionally, any such claim will be resolved as follows:

We will first try to resolve any claim informally. Neither party may initiate a formal proceeding for at least 30 days after one party notifies the other of a claim in writing. Notice of the claim will include the name and contact information of the party giving it, the facts giving rise to the claim, and the relief requested. You will send your notice as a written request by email. MSI will send its notice to the primary email address associated with your account.

If we cannot resolve a claim informally, it will be settled by final and binding arbitration conducted in Riverside County, California (unless the parties agree to arbitrate via telephone) in accordance with the commercial rules and practices of the American Arbitration Association (AAA) then in effect. Arbitration means that you waive your right to a jury trial. You agree that any cause of action arising from or related to the service must commence within one year after the cause of action becomes known or it is permanently barred.

To start an arbitration, you or MSI must complete a Demand for Arbitration form, which is available at the AAA website (www.adr.org), and follow their instructions.

When submitting the completed form to MSI, it must be addressed as follows:

 

MasterStream, Inc.

2279 Eagle Glen Parkway, Unit 112-157, Corona, CA 92883

Attn: Legal

 

 

Subject to these Terms, MSI provides the ability to perform Lookups to determine the presence or likely presence of several forms of telecommunications access technologies. MSI will maintain Customer Content according to the Terms set forth herein.

Data Ownership. You retain all rights to your data. "Your data" is defined as any data that you submit to MSI that is not already publicly available. MSI will utilize your data to fulfill your Lookups.  MSI may utilize the aggregate of your data, the data of other customers, and meta data derived from such aggregated data for the purpose of analysis and reporting, the results of which may be sold by MSI to other parties. In no case will any such analysis or report disclose Your data or any personally identifiable information about you or your individual activities. MSI agrees not to disclose your data to any unauthorized third party and to protect your data from unauthorized access or theft using commercially accepted security methods. MSI further agrees to protect your data from loss using commercially accepted backup methods.

While you retain the rights to your data, the data produced by the Service in response to your Lookups is not your data and you cannot sell or redistribute such data, in whole or in part, in a competitive manner, whether for profit or not. For example, you cannot use data derived from the Service to offer your own competitive service to others.

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