VERTICAL CITY USER TERMS OF SERVICE
LICENSE TO USE VERTICAL CITY TECHNOLOGY
Version Effective: 2022-09-27
Welcome to Vertical City Inc. [Vertical City or we/our], and to our state-of-the-art digital screen technology platform for informative, interesting and relevant content for use on digital screens [Digital Screens] in elevators, lobbies and buildings generally [Platform]. Our Platform also offers third-party advertising to pay for Your cost of using the Platform and offering interesting and informative content. These Terms of Service, which constitute a License Agreement [Agreement] between Vertical City and You [You/Your], govern Your access to and use of the Vertical City service. Please read this Agreement carefully; Your opportunity to use the Vertical City software and Platform [collectively, Technology] has certain restrictions. The Technology is made available to You as a hosted service pursuant to this Agreement [Service].
1. BINDING AGREEMENT
Once You establish an online account (as described below) and sign in to that account, You expressly acknowledge that You are a party to this Agreement and agree to be bound by it. If You are employed by, a subcontractor to, an agent of, or represent, a Customer as defined below, and have been given credentials to access Service to publish Customer Content (as such terms are defined below) on Your building’s Digital Screens, then You hereby represent that You have the authority to undertake the acts that You take with respect to the Service and/or Digital Screen Customer Content, including without limitation how it is displayed on any Digital Screen, and Your acts shall be deemed the acts of the Customer. You represent or are employed by or with which You have a legal or other relationship of responsibility (e.g., condo association board member). This Agreement applies to Your license to and use of the Service, as well as any related materials or content provided by Vertical City and/or published on Digital Screens at Customer’s property (whether elevator or elsewhere at the building) [Screen(s)] though Vertical City’s operation of the Service, including third-party components and materials [collectively, Content]. In this Agreement, “Customer” includes the entity or individual who is the property manager, building owner, or representative of the co-operative or condominium association with whom You have a relationship as described above in relation to the Service and Screens, and/or which provided You with the credentials enabling You to access the Service and/or Content. If You invite other users associated with Customer to access the Service, which enables the publication and posting of Customer Content, then in all of these cases such Customer shall also have responsibility for the acts or omissions of the invitee. Therefore, as a user, meaning an individual authorized by Customer to use the Service in accordance with this Agreement [User(s)], You should take care to maintain the confidentiality of Your access credentials and not share them with other persons. You as the Customer, which has ultimate responsibility for the building elevators and Screens, should only give access credentials to those Users whom You trust to act responsibly in accordance with this Agreement and not engage in any prohibited conduct or publish any Customer Content prohibited by this Agreement or applicable law. While “Content” generally refers to content that is provided by Vertical City and/or appears on the Screens through Vertical City’s operation of the Service, “Customer Content” refers to Content that is published and/or posted by Customer acting through its Users. This Agreement also governs Your relationship with third-party Content consisting of advertising that is displayed on Screens through the Service [Ad(s)].
The term “Service” includes any documentation, user guides, upgrades, updates, supplements, third-party materials and components and support services provided by, for or on behalf of Vertical City in connection with use of the Service. Any Vertical City terms and conditions that appear in or on, or accompany, any Technology, the Service or the Content also apply and bind You in connection with Your use of and access to the Service and Content.
By agreeing to use the Service and Content by means of signing into Your online account with Vertical City, including Your responsibility for and/or activities in connection with Customer Content, and with respect to all Ads and other Content displayed on the Screens, You accept these Terms of Service. If You do not accept them, or if You are acting on behalf of a Customer but You are not authorized to bind the Customer, do not create an account or sign into Your account, as you are not authorized to access or use (and in certain circumstances modify) the Service and Content. You as an individual also represent that You are 18 or older, otherwise You are not permitted to enter into this Agreement and are not permitted to use the Service.
2. THE BASIC LICENSE
Subject to the terms and conditions of this Agreement, You (whether a Customer or as the individual User) are hereby granted a limited, non-exclusive, non-transferable and royalty-free right and license to use and interact with the Service and Content solely during the Term (as defined below) in accordance with this Agreement to enhance the Screen user experience in Your building. The Service is licensed to You for Your use during the Term, but not sold to You. You have no right to sublicense the Service or Content to others, nor to assign any rights granted to You by this Agreement or to give Your login credentials, which are provided to You by the Customer with which You have a legal relationship, to any other person. You will need to use Your credentials (log-in and password) to log into the Platform in order to publish and post Customer Content on the Screen. We hold Your credentials but do not have access to Your password, which is encrypted. Our storage of Your credential information enables You to obtain a new password if You forget or can no longer use the existing one. While You cannot share Your credentials with colleagues and friends, You may create unique login credentials for additional authorized Users of the Service. You are responsible for keeping all account passwords secure. We will not be liable for any loss or damage caused by or arising from a failure by You or Your Users to maintain the security of the Your account and password.
3. CONTENT DISPLAY; ADVERTISING; DISCLAIMER
The display of the Service and Content is intended to enhance Your time in the elevator with high-quality information and graphics, which information often includes important notices, weather, news items of interest, sports, cultural information and events happening in Your city or location. Vertical City is constantly enhancing and upgrading the functionality of the Service, as well as the appeal and presentation of the Content made available to You and/or displayed on the Screens.
The Service and Content is paid for largely by the Ads that appear on the Digital Screens, which are served from a large inventory of Ads from the Service’s advertisers based on advertiser preferences with respect to Your building, location and perceived demographics. The advertisers choose the Ads that will appear in a given location.
Vertical City serves Ads to a large number of Digital Screens in the United States and Canada. In general, Vertical City does not moderate or review Ads served by the Service for display on Digital Screens; the Ads appear as the result of an automated process based on various criteria primarily based on advertiser preference. In the event You find any advertising on one of Your Digital Screens to be offensive or distasteful, or unacceptable for some other reason of general application, please contact us within 24 hours of Your objection to the Ad at: support@verticalcity.com, and provide as much information as You can regarding the address and location of the Digital Screen, Your name and title, Customer name, the name of the brand advertised, the nature of the Ad content which You deem inappropriate, offensive or unlawful, and the date on which You viewed the Ad. If You believe that an Ad or any other Content displayed on a Digital Screen infringes a third-party’s rights, please follow the notification/takedown procedures set forth in Section 15(b)(I) of this Agreement, below. Vertical City is an internet service provider [ISP] under applicable law, e.g., 47 U.S.C. §230. We are not the speaker or publisher of the Content or other information provided by third parties and displayed on the Digital Screens. We are also an ISP in accordance with Data Protection Laws (as defined below) together with the Digital Millennium Copyright Act [DMCA], 17 U.S.C. §512, as discussed below in Section 15(b)(I) of this Agreement. “Data Protection Laws” means all laws and regulations, including laws and regulations of Canada (including the Personal Information Protection and Electronic Documents Act (Canada) and the Canadian Anti-Spam Legislation, each as amended or superseded from time to time) applicable to the processing of PII under the Agreement.
DISCLAIMER. The remedies set forth above are the sole remedies for Content that is alleged to infringe, or infringes, a third-party’s Intellectual Property Rights or otherwise violates its rights, or is offensive, objectionable, inappropriate to You, or alleged to be unlawful, to You or others who view such Digital Screen Content. Vertical City hereby disclaims all liability for any claims regarding the Content described in this section of the Agreement, provided that Vertical City acts reasonably within applicable law and the parameters set forth in this Agreement, absent its gross negligence or willful misconduct.
4. ORGANIZATION ACCOUNTS AND USER ACCESS
Each User with access to the Service (other than merely viewing Digital Screen Content) will need to set up an account on the Platform, https://verticalcity.com, using login credentials provided to You by Customer. Customer can only permit Users it has authorized to use the Service interactively (e.g., to publish/post Content on the Digital Screen). Customer shall ensure that each User complies with all applicable terms and conditions of this Agreement (including applicable privacy policies, acceptable use policies and other general terms and conditions), and remains liable to Vertical City for any act or omission by any User enabled by Customer in connection with such User’s use of the Service, whether such User is an employee, contractor, agent or representative of Customer.
Customer will, and will require all Users to, use all reasonable means to secure User names and passwords, and hardware and software used to access the Service in accordance with customary security protocols, and will promptly notify Vertical City if Customer or User knows or reasonably suspects that any User name and/or password has been compromised. Each account for access to and use of the Service may only be accessed and used by the specific User for whom such account is created. Customer will further ensure that no User misrepresents his or her identity or otherwise provides any deceptive or misleading profile information when creating an account to use with the Service.
5. TERM OF LICENSE
The license granted to You under this Agreement runs for an indefinite term [Term] unless terminated by either party giving the other party at least thirty (30) days’ prior written notice. Upon termination of this Agreement, the Service will no longer be available on the Digital Screens.
6. RESTRICTIONS ON USE AND DISCLOSURE
When You access or use any Vertical City Service or Content, You agree that You will not (and shall not allow Users or any third party to) (a) possess, download or copy the Service or any part of the Service, including but not limited any component which comprises the Service, but not including any output from the Service; (b) knowingly interfere with service to any of Vertical City’s users, host or network, including by means of intentionally submitting a virus, overloading, flooding, spamming, mail bombing or crashing the Service; (c) modify, translate, reverse engineer, decompile, disassemble or create derivative works based on the Service and/or the Technology; (d) remove any proprietary notices, labels, or marks from the Service and/or the Technology; (e) create any “links” to or “frame” or “mirror” of the Service or any portion thereof; or (f) use the Service and/or the Technology to create, collect, transmit, store, use or process any Customer Data (as defined below) that: (i) Customer does not have the lawful right to create, collect, transmit, store, use or process, or (ii) violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity); nor (g) attempt any activities not expressly permitted by this Agreement. Further, You understand and agree that the Technology is Confidential Information (as defined in Section 9) and is the property of Vertical City. Accordingly, You agree not to disclose the Technology nor any Confidential Information about the Technology, the Service or Vertical City, in whole or in part, to any third party without the prior express written consent of Vertical City in each instance. In particular, You will not disclose to any third party or disseminate to the public (except privately to Vertical City), publish on the internet or elsewhere any Confidential Information concerning the Technology or Service (e.g., any technology test results) without written permission from Vertical City. Notwithstanding the foregoing, Your opinions and comments and suggestions for the Service are NOT Confidential Information, as long as they do not contain Confidential Information as defined in Section 9. We appreciate Feedback (defined in Section 10), and therefore subject to the restriction in the previous sentence, You are free to post and blog about Vertical City and Your experience, on Your own website or on social media, and to review and critique our Service and Content as You deem appropriate. “Customer Data” means the data submitted by or for Customer to the Service or collected and processed by or for Customer using the Service, including the data of and PII belonging to Customer’s employees, contractors, customers, patrons, visitors or other users.
Vertical City has the right, but not the obligation, to monitor the advertising and User activities on elevator and other Digital Screens that feature the Service, primarily to ensure that there is no illegal or unacceptable conduct or activity taking place, or to respond to information we receive from other Users or third parties. (a) In the event that You undertake activities in Your use of the Service or Content that violate applicable law or that put Vertical City’s reputation at risk, we have the right to suspend Your use of and access to the Service or to take down a given post or Ad as we deem necessary to ensure that illegal, scandalous, obscene or defamatory activities do not take place. (b) Vertical City in no way endorses any activities that You undertake regarding the Service or Content. (c) Vertical City hereby disclaims all liability that might arise from any claim relating to any activity that takes place through Your use of or access to the Service or Content, or otherwise on an Digital Screen. You agree to indemnify and hold Vertical City harmless should any liability arise from Your conduct if it violates the restrictions set forth in this paragraph.
7. OWNERSHIP
The Service, Technology and any Content provided by Vertical City or obtained or accessed by You from Vertical City or its agents shall remain the sole property of Vertical City and its successors and assigns, and under no circumstances may it be used in any way other than pursuant to this Agreement, nor may any Technology or Content, or the Service, be retained, sold, or reproduced by any means by You except as specified in this Agreement or the Vertical City Materials, and You shall have no intellectual property rights, including but not limited to trade secrets, trademarks, patent rights, copyrights and moral rights [Intellectual Property Rights] in the Service, Technology or Content, and upgrades, updates and derivative works thereto, except with respect any content contributed or added by You/ Customer. No right or license is granted to You or to any third party by implication, estoppel or otherwise, other than the express rights set forth in this Agreement. Vertical City may discontinue development of the Technology at any time, which will not affect Your subscription license during the Term. Any rights that You acquire in such Service, Technology and/or Content, other than the license rights granted by this Agreement, are hereby assigned to Vertical City, including all Intellectual Property Rights that You may have or acquire anywhere in the world (including moral rights, to the maximum extent permitted by applicable law), and any other rights You may have pertaining to the Service provided by or made accessible by Vertical City. You will not attempt to register any Intellectual Property Rights in the Service, Technology or Content anywhere in the world.
Notwithstanding the foregoing, You/Your customer(s) retain all rights in, and take full responsibility for, all content not provided by or made accessible by Vertical City that You input on an Digital Screen [Customer Content], and in any information relating to an identified or identifiable natural person or personal data as defined under applicable Data Protection Laws [PII] that Your customers and Users provide to Vertical City to facilitate provisioning of the Service, which as between Vertical City and You remains Your property. The PII that is provided to Vertical City in order to establish accounts and provide the Service consists of name, email address and job title (role or function). We also collect GPS or location information about the Customer (not User), which is not PII. All of this PII remains the property of Customer/User/data subject. For greater certainty, Vertical City and its licensors own and shall retain all right, title and interest (including without limitation all patent rights, copyrights, trade-mark rights, trade secret rights and all other intellectual property rights), in and to the Service and the Technology and any copies, corrections, bug fixes, enhancements, modifications or new versions thereof, all of which shall be deemed part of the Service and subject to all of the provisions of this Agreement. The content that You introduce to the Service or the PII that You provide to Vertical City (as between You and Vertical City) remains Your property at all times. Your Feedback becomes Vertical City’s property on a nonexclusive basis as indicated below. Customer shall keep the Service and the Technology free and clear of all liens, encumbrances and/or security interests. Subject to the limited rights expressly granted in this Agreement, We reserves all rights, title and interest in and to the Service and the Technology. No rights are granted to Customer pursuant to this Agreement other than as expressly set forth in this Agreement.
8. VERTICAL CITY’S OBLIGATIONS
We also have certain responsibilities to You:
A. Providing the Service. We provide the Service to You and provide basic support services. We will use commercially reasonable efforts to respond to support enquiries within one (1) business day, bearing in mind that we do not control whether a given elevator is functioning or not, or the Customer’s ISP connection or power supply to a Digital Screen in a particular building or location.
B. Protecting Customer Content and Personal Data. In connection with the provision of the Service, Vertical City will maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Service and Customer Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Customer Data except (a) to provide the Service and prevent or address service or technical problems, (b) as compelled by law and upon identification of lawful authority, (c) as expressly permitted in writing by Customer, or (d) as allowed under applicable Data Protection Laws. Vertical City shall, in connection with the provision of the Service, comply with Data Protection Laws. In addition, our interaction with Your Customer Content and PII shall be in accordance with our Privacy Policy which can be viewed at verticalcity.com/privacy, which is intended to comply with Data Protection Laws and any other applicable privacy and data protection legislation, including without limitation GDPR and the California Consumer Privacy Act, CCPA (see below).
C. Enhancing the Service. We work to continuously enhance and improve the Service regarding functionality, usability and security perspectives. In order to enhance the Service, we pay attention to the User experience with the Service, both via Feedback and also by collecting various metrics and data that provide us with useful information on how Users use the Service, where they spend their time, what functionality is most used, what may cause Users difficulty or trigger support services, etc. Customer acknowledges and agrees that the Service compiles, stores and uses aggregated data and system usage, analytics and diagnostic information to monitor and improve the Service and for the creation of new products. All data collected and used by Vertical City will be in aggregate, anonymized and/or de-identified form only and will not identify PII.
9. CONFIDENTIAL INFORMATION
For purposes of this Agreement, “Confidential Information” includes innovations, any information, knowledge or data of either party which the other party and its employees may access or receive relating to the Service, Technology, Content, Customer Content, code, computer programs, accounting methods, marketing techniques, customer names, negotiated customer fee information, financial information, marketing plans, product plans, product or services roadmaps, business strategies, forecasts, personnel information, customer lists, trade secrets and any other nonpublic technical or business information, whether in writing, given to the recipient (the “Recipient”) orally or in any other way communicated or provided to the Recipient, including any Customer Content provided to Vertical City, which the Recipient knows or has reason to know that the disclosing party (the “Disclosing Party”) would like to treat as confidential. For sake of clarity, Content uploaded to Digital Screens by Vertical City/the Service, and Customer Content input by a Customer or User to appear on Digital Screens is not Confidential Information, as it is intended to be seen by the public. The Service, Technology and any nonpublic Content shall remain the Confidential Information of Vertical City at all times. Any nonpublic Customer Content remains Your Confidential Information or that of Customer. A Recipient shall not disclose any Confidential Information of the Disclosing Party without the prior written consent of the Disclosing Party, and neither party shall use any Confidential Information of the Disclosing Party except with respect to You as Recipient, to properly use the license granted under this Agreement, or with respect to Vertical City as Recipient, only to the extent necessary to provide and enhance the Service and other services, or assist Your use of the license You have obtained under this Agreement.
All Confidential Information of the Disclosing Party shall be protected from disclosure by the Recipient using the standard of care Recipient uses with its most valuable Confidential Information, and at least a commercially reasonable standard of care; and no Confidential Information of the Disclosing Party shall be used for any purpose other than that for which it has been disclosed, and shall not be used for the benefit of Recipient or any third party except as permitted by the license to use the Service and/or by this Agreement. Confidential Information does not include information that: (a) is in the public domain through no fault of the Recipient; (b) was known to Recipient prior to disclosure by the Disclosing Party without breach of an obligation to Disclosing Party, as can be demonstrated by documentary evidence; (c) was disclosed to Recipient by a third party not known by Recipient to be under a confidentiality obligation to Disclosing Party; (d) was independently developed by Recipient without use of Confidential Information of Disclosing Party. If required by law or court or governmental order, Recipient can disclose Confidential Information of discloser, but Recipient first shall give Disclosing Party the opportunity to oppose or limit such disclosure, and shall never disclose more than Recipient is required to disclose.
If the Recipient discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
10. YOUR FEEDBACK
You understand and agree that You are welcome to provide Vertical City with Your comments, suggestions, concepts, ideas, recommendations for improvements and other feedback concerning the Service, Technology and Content [collectively, Feedback] including without limitation the use, operation, functionality, appearance and other features and characteristics of the Service, Technology and Content. Any and all Feedback concerning the Technology and Service, whether or not patentable or protectable in another form, becomes the property of Vertical City on a nonexclusive basis upon Your communication of such Feedback to Vertical City. Vertical City may use the Feedback at any time, in any manner, and in any form or medium now existing or hereafter created, without any further communication with You about such use, and without any obligation of accounting or payment, and Vertical City shall have the right to register any Intellectual Property Rights anywhere in the world in the Feedback or results or derivative works thereof, without giving You any attribution. Accordingly, You agree to provide such Feedback concerning the Service, Technology and Content only to Vertical City for its use in any manner it deems fit, including without limitation the commercial exploitation thereof and/or the sale or other transfer thereof to one or more third parties, free of any Vertical City obligation to You or others. You hereby expressly agree not to provide to Vertical City any Feedback in which any third party has or may have any right, claim or interest or in which You either assert, or have any expectation of receiving any remuneration, reward or consideration of any sort, beyond any consideration that may be expressly set forth in this Agreement.
11. NO WARRANTIES
THE SERVICE, TECHNOLOGY AND CONTENT ARE PROVIDED “AS IS” AND “WITH ALL FAULTS”. VERTICAL CITY MAKES NO WARRANTIES OF ANY KIND IN CONNECTION WITH THE SERVICE, TECHNOLOGY AND CONTENT, AND HEREBY DISCLAIMS ALL WARRANTIES OF EVERY KIND, EXPRESS, IMPLIED AND STATUTORY, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT. NO WARRANTY IS GIVEN WITH RESPECT TO SECURITY OR PRIVACY UNLESS OTHERWISE INDICATED IN THIS AGREEMENT, OR FOR ANY THIRD-PARTY MATERIALS UNLESS A THIRD-PARTY WARRANTY CAN BE PASSED THROUGH TO YOU.
12. INDEMNIFICATION:
You (Customer) will defend Vertical City and its personnel and affiliates [Vertical City Indemnitees] against any actual third-party claims, suits, actions or proceedings [Claim(s)] that arise from: (i) Customer’s or any of its Users violation of this Agreement, or (ii) infringement or misappropriation by the Customer, any User or the Customer Content of the Intellectual Property Rights of a third party, or (iii) Customer’s or its Users’ use or processing of PII in violation of the rights of a data subject, and You will indemnify the Vertical City Indemnitees for reasonable attorney’s fees incurred and damages finally awarded against a Vertical City Indemnitee pursuant to such Claim, and for any amounts owed or paid by a Vertical City Indemnitee under a settlement of such Claim. However, in the event that You fail to timely take over the defense of a Claim under this paragraph, Vertical City reserves the right to assume the defense of such Claim through its own counsel in which event You must pay all such attorney’s fees and costs incurred by Vertical City. In any settlement, Vertical City’s prior written consent shall be required if a Vertical City Indemnitee is adversely affected. This paragraph is Vertical City’s sole remedy and Your only obligation with respect to a Claim against a Vertical City Indemnitee.
13. LIMITATION OF LIABILITY AND EXCLUSION OF REMEDIES
VERTICAL CITY SHALL NOT BE LIABLE FOR ANY LOSS OR INTERRUPTION OF BUSINESS, LOSS OF USE OR LOST REVENUES, PROFITS OR DATA, OR HARM TO ANY COMPUTER OR SYSTEM EVEN IF VERTICAL CITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS. VERTICAL CITY HAS USED COMMERCIALLY AVAILABLE ANTI-VIRUS TECHNOLOGY AND HAS NOT KNOWINGLY INCLUDED ANY VIRUS, WORM, TROJAN HORSE OR OTHER MALWARE IN THE SERVICE OR TECHNOLOGY, BUT MAKES NO WARRANTY OF ANY SORT THAT IT IS FREE FROM SAME.
IN NO EVENT SHALL VERTICAL CITY OR ITS LICENSORS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR CONNECTED IN ANY WAY WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREUNDER. IN NO EVENT SHALL VERTICAL CITY’S LIABILITY FROM ANY CAUSE OR MATTER ARISING UNDER OR IN CONNECTION WITH THE SERVICE OR THIS AGREEMENT OR ITS BREACH EXCEED IN THE AGGREGATE THE SUM OF US $100 (ONE HUNDRED U.S. DOLLARS), REGARDLESS OF THE FORM OF ACTION AND HOWEVER ARISING, PROVIDED THAT THIS LIMIT SHALL NOT APPLY TO VERTICAL CITY’S INDEMNIFICATION OBLIGATIONS IN PARAGRAPH 12.A ABOVE WHICH SHALL BE LIMITED TO THE AMOUNT PAID BY YOU FOR THE SERVICE DURING THE 12 MONTHS PRECEDING THE CLAIM HAVING FIRST ARISEN.
14. TERMINATION
Either party may terminate this Agreement for cause (i) upon thirty (30) days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
Any and all Confidential Information, Customer Content and copies thereof shall be promptly destroyed by Vertical City at its own cost, upon termination or expiration of this Agreement. Notwithstanding the foregoing, Vertical City shall have the right to retain copies of Confidential Information to the extent (i) required to comply with legal requirements; or (ii) stored on routine back-up media solely for the purpose of disaster recovery, provided that such information is destroyed in due course and that employees are precluded from accessing such Confidential Information in the ordinary course of business prior to destruction.
15. COPYRIGHT POLICY
(a) Overview.
These Terms of Service govern all Claims or complaints regarding Customer Content of any nature, whether posted in Spaces or otherwise. Vertical City is an online/internet service provider [OSP and ISP] and therefore has registered as a Designated Agent with the US Copyright Office under the Digital Millennium Copyright Act [DMCA] found in relevant part at 17 U.S.C. §512. In brief this means that You are responsible for ensuring that You have adequate ownership or license rights to use, modify and publish Your Customer Content, and in general Vertical City does not moderate or restrict Your Customer Content. You are also responsible to ensure that the Customer Content is not defamatory, pornographic, politically extreme or otherwise objectionable on grounds of race, gender, religion, politics or otherwise, as we are not required to moderate or monitor Your Customer Content. However, we reserve the right to do so as we deem necessary in order to protect the Digital Screens and the health and safety of our Users, as well as others who may view the Digital Screens.
We require Customer Content posted by Users be accurate, lawful and not in violation of the rights, including Intellectual Property Rights, of third parties. To promote these objectives, Vertical City provides a process for submission of complaints/takedown notifications regarding Customer Content posted by our Users. Our policy and procedures in accordance with the DMCA are set forth below.
Whether or not we disable access to or remove Customer Content, Vertical City may make a good faith attempt to forward the written DMCA notification, including the complainant’s contact information, to the User who posted the Customer Content, and/or take other reasonable steps to notify the User that Vertical City has received notice of an alleged violation of Intellectual Property Rights or other content violation. It is also our policy, in appropriate circumstances and in our discretion, to disable and/or terminate the accounts of Users, or groups as the case may be, who infringe or repeatedly infringe the rights of others or otherwise post unlawful Customer Content.
Please note that any notification or counter-notification that You submit must be truthful and must be submitted under penalty of perjury. A false notification or counter-notification may give rise to personal liability. You may therefore want to seek the advice of legal counsel before submitting a notification or counter-notification to us under the DMCA and these Terms of Service.
(b) Claims regarding copyright infringement:
(I) Notification of Copyright Infringement:
Pursuant to the DMCA, Vertical City has implemented procedures for receiving written notification of claimed infringements. Vertical City has also designated an agent to receive notices of claimed copyright infringement at the address indicated below, which has been filed with the US Copyright Office and is available online. If You believe in good faith that Your copyright has been infringed, You may complete and submit a notification of copyright infringement (“Notification”) which contains all of the following information (17 U.S.C. § 512(c)(3)):
(i) A physical or electronic signature of the person authorized to act on behalf of the owner of the copyright that is allegedly infringed;
(ii) Identification of the copyrighted work or works that You claim has been infringed;
(iii) Identification of the material You believe to be infringing (that You want removed or as to which access is to be disabled) and information sufficient to enable Vertical City to locate the material (e.g., in a specific Space or on our website);
(iv) Your email address and Your mailing address and/or telephone number so that You can be contacted;
(v) A statement by You that You “have a good faith belief that the use of the allegedly infringing material in the manner complained of is not authorized by the copyright owner, its agent, or the law”;
(vi) A statement by You that the information in Your notification is accurate, and You further state that “under penalty of perjury,” You “are the copyright owner or authorized to act on the copyright owner’s behalf.”
If Your notification is not in substantial compliance with these six (6) requirements, Vertical City is not deemed to have notice of Your claimed infringement.
Please submit Your notice to Vertical City Corporation’s Copyright Agent as follows by mail or email:
Vertical City Inc.
ATTN: DMCA Copyright Agent
#1200-10707 100 Ave.
Edmonton, AB T5J 3M1
Email: copyright@verticalcity.com
(II) Counter-Notification:
If You disagree with the claims in the Notification, You have the right under §512(g)(3) of the DMCA to file with Vertical City at the above address(es) a counter-notification which must contain the following information:
(i) Your physical or electronic signature;
(ii) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or had access disabled;
(iii) A statement under penalty of perjury that You have a good faith belief that the material was removed or disabled as a result of mistake or misidentification; and
(iv) Your name, address and telephone number, and a statement that You consent to the jurisdiction of the Federal District Court for the judicial district in which Your address is located, or if Your address is outside the United States, then the US District Court for the Southern District of New York, where we are located, and You must state that You will accept service of process from the person who provided Notification or such person’s agent.
If You provide a complete and accurate counter-notification, then the matter is one which must be resolved between the interested parties, or by the applicable court, in accordance with the DMCA.
16. PRIVACY
(a) General. Vertical City shall comply with Data Protection Laws, together with its Privacy Policy set forth at verticalcity.com/privacy. Vertical City shall secure PII with all necessary safeguards appropriate to the level of sensitivity of the PII. Vertical City shall only process PII on behalf of and in accordance with Customer’s documented instructions and applicable Data Protection Laws for the following purposes: (a) processing in accordance with the Agreement; (b) processing initiated by Customer’s Users or customers in their use of the Service; and (c) processing to comply with other documented reasonable instructions provided by Customer where such instructions are consistent with the terms of the Agreement and applicable Data Protection Laws. Vertical City shall ensure that its personnel engaged in the processing of PII: (x) are informed of the confidential nature of the PII, (y) have received appropriate training on their responsibilities, and (z) are under contractual or statutory obligations to maintain the confidentiality of Customer Data. Vertical City shall take commercially reasonable steps to ensure the reliability of any Vertical City personnel engaged in the processing of PII.
Vertical City is certified as complying with Privacy by Design, a GDPR principle. The Service does not use facial recognition, instead, the Digital Screens use anonymous video analytics [AVA]. With AVA, all that our camera “sees” would be vectors and numbers translated into code, not real images, and so the PII of Digital Screen viewers is never collected. In addition, given that no facial recognition is collected, the Service cannot recognize if an individual takes multiple trips in an elevator; each trip is perceived as a new data point, without memory of previous trips.
Customer hereby represents and warrants to, and covenants with Vertical City that Customer Data will only contain PII in respect of which Customer has provided all notices and disclosures, obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by applicable laws, to enable Vertical City to provide the Service, including with respect to the collection, storage, access, use, disclosure and transmission of PII, including by or to Vertical City and to or from all applicable third parties.
Security Incident. If Vertical City discovers, is notified of or suspects any (1) theft or unauthorized destruction, loss, alteration of or access to Customer Data or other processing of PII or; or (2) a breach of security relating to Customer Data, (each a “Security Incident”) Vertical City shall, within a reasonable time:
(i) notify the Customer representative at the address provided in the Agreement of such Security Incident by email or phone, but in no case later than 72 hours after Vertical City has become aware of or suspects the Security Incident;
(ii) with Customer’s consent, start an investigation of the Security Incident and take all appropriate actions to remediate the effects of the Security Incident and mitigate any risks that may arise from the Security Incident, and
(iii) fully cooperate in good faith with the Customer team in any investigation that they may undertake in relation to the incident.
No independent action to correct a Security Incident shall be taken unless failure to immediately respond will result in irreparable harm to Customer.
(b) Supplemental Privacy Statement for California Consumers and Others. In light of California’s privacy legislation, the California Consumer Privacy Act of 2018 [CCPA], we wish to make the following clear to our California-based Users who use the Service: (i) While we do not yet meet the thresholds that require us to comply with the CCPA for the benefit of California consumers (natural persons resident in California), (ii) we plan to voluntarily and substantially comply with the CCPA, as long as we are caused no undue burden in doing so, and (iii) on a similar basis, we intend to provide the same or similar information to consumers from other states, provided that it does not become burdensome to us.
California consumers have the following five categories of data privacy rights with respect to their personal information (information that can be used to identify them):
1. The right to know what PII we collect about You if You are a California consumer, and the purposes for which such information will be used, the categories of PII that were collected in the 12 months preceding a consumer’s request, and what categories of consumer PII were sold or disclosed for business purposes, and to whom, in the 12-months preceding such a request for Your information. Please request our online disclosure form at privacy@verticalcity.com or call us at our toll-free number if You wish to request this information: +1 (866) 789-3776. We will respond to You within 45 days, and will not charge for Your request provided that You make no more than two data requests per year.
2. The right to access a copy of the specific pieces of PII that we have collected about You, which we will deliver by mail or electronically.
3. The right to deletion: You can have Your PII deleted from our servers and those of any service providers we use, unless we are required to retain the data for data security, legal or other purposes enumerated in the law.
4. The right to opt out of a sale of Your PII to third parties, but since we do not sell any of Your PII to third parties, this right is not one You will be required to exercise to prevent a sale of PII.
5. The right to equal service: You will not be discriminated against in any way by virtue of Your exercise of Your rights under the CCPA.
Procedure:
• To exercise Your right to access Your PII You must send us a verifiable consumer request (“VCR”). Once received, we will disclose and deliver, free of charge to You, the PII that we hold about You. We will deliver this information by mail or electronically, in the latter case it shall be in a portable and if technically feasible, readily useable format so that You can re-transmit this information to another entity without problem. We will deliver this information within 45 days of receiving a verifiable request from You, and if reasonably necessary, we can extend this for an additional 45 days if we provide You notice of the extension. Our disclosure will cover the 12-month period preceding receipt of Your VCR, and if You maintain an account with Vertical City, we will deliver the disclosure through Your account, or by mail or electronically at Your option if You have no account with us. This is an obligation we have no more than twice in any 12-month period. We are not required to maintain Your PII from a single, one-time transaction.
• To exercise Your right to have Your PII deleted, You must send us a VCR to this effect. Once You request deletion, we shall delete Your PII from our records, and direct any service provider who has obtained Your PII from us also to delete such PII from its records. However, we are NOT required to delete Your PII if we need it to (i) complete the transaction or sale for which the PII was provided or otherwise perform a contract; (ii) detect Security Incidents, or protect against malicious or fraudulent or other harmful activity; (iii) debug to identify and repair errors that impair intended functionality; (iv) exercise free speech or ensure the right of another consumer to exercise free speech as provided by law; (v) comply with the California Electric Communications Privacy Act per Chapter 3.6 thereof; (vi) engage in public or peer-reviewed scientific, historical or statistical research in the public interest in accordance with applicable ethics and privacy laws if to delete would likely impair or render impossible the achievement of the research; (vii) enable solely internal uses that are reasonably aligned with the expectations of the consumer based on the business relationship; (viii) comply with a legal obligation; (ix) otherwise use Your PII, internally, in a lawful manner that is compatible with the context in which You provided the information.
Selling Personal Information. As mentioned above, Vertical City DOES NOT SELL Your PII.
Non-Discrimination. In addition, we will not discriminate against You or any consumer for exercising any of Your consumer privacy rights under the CCPA, which includes but is not limited to: (i) denying goods or services to the consumer; (ii) charging different prices or rates for goods or services, including through the use of discounts or other benefits or imposing penalties; (iii) providing a different level or quality of goods or services to the consumer, if the consumer exercises the consumer’s rights set forth in these Terms of Service; or (iv) suggesting that the consumer will receive a different price or rate for goods or services or a different level or quality of goods or services. However, we are permitted to charge a consumer a different price or rate, or from providing a different level or quality of goods or services to the consumer, if that difference is reasonably related to the value provided to the consumer by the consumer’s data. In addition, we have the right to offer financial incentives, including payments to consumers as compensation, for the collection of PII, the sale of PII, or the deletion of PII, if we provide notice to You and give You the right to opt-out of such a program. Any financial incentive program will not be unjust, unreasonable, coercive or usurious in nature. We also have the right to offer a different price, rate, level, or quality of goods or services to the consumer if that price or difference is directly related to the value provided to the consumer by the consumer’s PII.
17. EXPORT RESTRICTIONS
The Technology and Service are subject to United States and Canadian export laws and regulations, as well as to international export laws and regulations wherever the Service is used. These laws include restrictions on permitted destinations, end users and end use, and on countries subject to sanctions and embargoes. In particular, the Service and Technology cannot be used or exported: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country as defined by the United States Government; (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval.
18. APPLICABLE LAW
This Agreement shall be governed exclusively by the laws of the Province of Alberta, Canada and the laws of Canada applicable therein, excluding the application of its conflicts of laws principles. Any dispute arising under or with respect to this Agreement, including with respect to the enforcement of any rights, provisions, or remedies hereunder, shall be solely and exclusively resolved by binding arbitration in Edmonton, Alberta, before a single arbitrator. Judgment upon any award or decision rendered by the arbitrator shall be binding on the parties and may be entered by any court or forum having competent jurisdiction. Notwithstanding the foregoing, either party may, without waiving any remedy under this Agreement, seek and receive from any court having jurisdiction injunctive or provisional relief necessary to protect the rights or property of such party pending the outcome of the arbitration hereunder. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY UNDERSTANDS AND AGREES THAT YOU AND WE ARE EACH (A) WAIVING THE RIGHT TO A TRIAL BY JURY; AND (B) WAIVING THE RIGHT TO PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION. In any such arbitration, the prevailing party shall recover its attorneys’ fees and costs from the other party, and the arbitral panel shall determine the prevailing party for this purpose.
19. MODIFICATION OF THE TERMS
It is possible that these Terms of Service will be expanded or modified as Vertical City’s business evolves, provided that any written agreements You may have entered into with Vertical City cannot be modified without Your written consent. We will use commercially reasonable efforts to give You notice of any material changes, either to the email address associated with Your Vertical City account, or through the Service. We also suggest that You review these Terms of Service from time to time to remain current with each party’s rights and obligations. Your continued use of the Service after such a modification constitutes Your acceptance of the modified Terms to the maximum extent permitted by applicable law.
20. ENTIRE AGREEMENT
You agree that this Agreement sets forth the entire Agreement and understanding between You and Vertical City concerning the Service, Technology, Content, Feedback, Customer Content and Ads, and Your license to use the Service, Technology and Content. This Agreement supersedes all prior and contemporaneous communications, written or oral, concerning the Service, Technology and Content, and is intended to be a complete and exclusive statement of the terms of this Agreement with Vertical City. You acknowledge that You have not relied upon any representation whatsoever of Vertical City which is not contained in this Agreement. Any waiver by Vertical City of any breach or default by You of any of the terms or conditions of this Agreement will not be considered as a continuing waiver or a waiver of any prior, subsequent or different breach. Vertical City shall have the ongoing, unfettered right to assign this Agreement to any current or future Vertical City affiliated company or third party, whether by merger, acquisition, reorganization, sale of substantially all assets or equity, or by operation of law, without Your consent and without notice. Any assignment or attempted assignment by You of this Agreement in whole or in part, or of any of the rights granted herein, without the prior written consent of Vertical City, shall be void. No alteration, amendment, variation, supplementation, modification or waiver of any of the terms of this Agreement shall be binding or effective for any purpose, unless made pursuant to an instrument in writing signed by an authorized representative of Vertical City. In the event that You are entering into this Agreement on behalf of a Customer, You hereby represent that You are at least 18 years old, and fully authorized to do so and bind such Customer to this Agreement.
