THIS MASTER SOCIAL PLATFORM AGREEMENT (“AGREEMENT”) GOVERNS THE CLIENT’S ACQUISITION AND USE OF SERVICES (DEFINED BELOW). BY (AS APPLICABLE) EXECUTING A WORK ORDER THAT REFERENCES THIS AGREEMENT OR ACCESSING AND USING THE SERVICES, YOU, THE CLIENT, HEREBY CONFIRMS THAT YOU HAVE READ AND AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO A WORK ORDER OR USING THE SERVICES ON BEHALF OF AN ORGANIZATION OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” AND “CLIENT” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE OR ALLOW THE ENTITY TO USE THE SERVICES.
THIS AGREEMENT WAS LAST UPDATED ON APRIL 19, 2012. IT IS EFFECTIVE BETWEEN YOU AND US AS OF THE DATE OF THE WORK ORDER (“EFFECTIVE DATE”).
“Applicable Laws” means all laws, statutes, ordinances, codes, rules and regulations which have been enacted by a government authority and are in force as of the Effective Date or come into force during the term of this Agreement, in each case to the extent that the same are applicable to the performance by the relevant party hereunder.
“Client Content” means all deliverables, data, information and materials that Client and its affiliates deliver to Extole in connection with the Services, including any trademarks, trade names, logos and marketing assets.
“Client Services” means the products and/or services of Client that Client wishes to promote using the Services.
“Consumer” means a consumer or potential consumer of Client Services.
“Consumer Content” means any and all data, information, content and materials developed by a Consumer and transmitted through the Services in connection with the Promotions.
“Consumer PII” shall mean any personally identifiable data relevant to Consumers that is communicated or provided to Extole or learned by Extole in connection with the provision of Services hereunder.
“Creative” means media, text or other marketing material originally produced by Extole or licensed by Extole from third parties to be used by Extole in connection with the provision of Services for the benefit Client; for clarity, Creative excludes any Client Content.
“Platform” means Extole’s underlying technology (including any software, hardware, firmware, or other platform technology or software) used to provide the Services via software-as-a-service.
“Promotions” shall mean any promotion delivered and communicated to Consumers through the Services for the benefit of Client, including communications regarding the same.
“Services” means online services delivered or made available by Extole via the Platform and any other ancillary professional services to be delivered by Extole, if any, as set forth in an applicable Work Order.
“Subscription Term” means the term during which Client subscribes to the Services as set forth in the relevant Work Order.
“Territory” shall be the USA, unless otherwise set forth in any Work Order.
“Work Order” means a work order executed by Client and Extole describing the Services, Client obligations or requirements, associated fees, and such other details as the parties may agree therein, which shall reference this Agreement and be incorporated herein.
2. Certain Responsibilities; Licenses; Data.
Services. Subject to the terms of this Agreement, Extole shall provide the relevant Services for the relevant Subscription Term and Extole grants a non-exclusive, non-transferable, non-sublicensable right to Client (and its Consumers where contemplated by a Work Order) to use and access the Platform during the relevant Subscription Term to the extent necessary in connection with the Services. Such access to the Platform shall be limited solely to access from within the Territory and Client-owned URLs and/or Facebook pages as may be specified in the relevant Work Order. Extole may make upgrades and improvements to the Platform from time to time. Extole may modify or delete any features of the Platform. Extole may, at any time, modify the Platform, or substitute old features with new features that have similar or improved functionality, as may be necessary to meet Applicable Laws or industry-standard requirements or demands or requirements of third party service providers.
Client Content and License. Extole’s provision of Services is conditioned upon Client’s provision of accurate and complete Client Content. Client shall timely provide to Extole all Client Content and perform all Client obligations reasonably necessary or as may be set forth on an applicable Work Order for Extole to provide the Services. Subject to the terms of this Agreement, Client hereby grants to Extole a non-exclusive, non-revocable, non-transferable, royalty-free, limited license to use Client Content solely to provide the Services during the relevant Subscription Term.
Consumer PII. To the extent required by Applicable Laws, Client will obtain all required consents and make all appropriate disclosures to Consumers regarding the Client’s use and disclosure of Consumer PII, including in connection with Extole’s provision of the Services. Except as necessary to perform the Services, required by Applicable Law or approved and/or directed by Client, Extole will not disclose or use Consumer PII.
Other Client Responsibilities. Client acknowledges that all Client Content and Consumer Content, and any other communications, data, text, messages and other material submitted to Extole directly or through the Platform on behalf of Client, or by Client, its contractors, or by Consumers, are the sole responsibility of the Client.
General Restrictions. Client may not, and may not allow others to: (i) copy, reproduce, modify, translate, prepare derivative works of, de-compile, reverse engineer, disassemble or otherwise attempt to derive source code of the Platform; (ii) use, evaluate or view the Services or Platform for the purpose of designing, or creating any environment, program, or infrastructure, which performs functions similar to the Services or Platform; (iii) other than as expressly contemplated by a Work Order, use the Services or Platform; (iv) remove, obscure, or alter any copyright notice, trademarks, logos or trade names, or other proprietary rights notices affixed to, or contained within the Platform; (v) attempt to gain unauthorized access to the Platform or its related systems or networks; (vi) make the Platform available to third parties in a service bureau arrangement or for any similar commercial time sharing or third party training use. Client shall (a) take all reasonable precautions to prevent unauthorized or improper use of the Platform, (b) not interfere with or disrupt the integrity or performance of Platform, (c) not attempt to gain unauthorized access to Platform or its related systems or networks, and (d) not create Internet “links” to the Platform or “frame” or “mirror” any content therein. Client may not access, store, distribute or transmit any material in or through the Platform that: (1) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (2) facilitates illegal activity; (3) depicts sexually explicit images; (4) promotes unlawful violence; (5) is discriminatory based on race, gender, color, religious belief, sexual orientation, disability, or any other illegal activity; or (6) causes damage or injury to any person or property, or any person’s rights of privacy, publicity and/or intellectual property.
Security. Client shall ensure the security of its account ID, password, and connectivity with the Platform. If any administrative account ID or password is stolen or otherwise compromised, Client shall immediately change the password and inform Extole of the compromise. Client acknowledges that responsibility for all Data, text, information, messages and other material submitted by its users to the Platform lies solely with Client. Client is solely responsible for the integrity and quality of Data, and for maintaining an appropriate backup thereof. Extole may change the authorization method for access to the Platform if it determines in its sole discretion that there are circumstances justifying such changes. Extole is not responsible for loss of data in transmission or improper transmission by Client or its users.
Anonymous Aggregate Service Data. For the purpose of optimizing Extole’s services and any other lawful purpose, Extole will own and may monitor and gather and aggregate traffic, conversion, performance, memory usage, connection speed, efficiency and other similar data and information provided that in no event will such data include any Consumer PII.
3. Fees and Payment.
Client shall pay Extole all fees and/or consideration outlined in a Work Order. Unless otherwise specified on the relevant Work Order, Services are billed in advance, invoiced amounts will be due and payable within thirty (30) days after receipt of invoice, and all payments to Extole shall be in US dollars. Overdue amounts, other than in the case of a good faith dispute, will be subject to a late payment charge at the lesser of one percent per month or the highest rate permissible under applicable law. If Client defaults in any payment when due, Extole, at its option and without prejudice to its other lawful remedies, may suspend access to and performance of Services. Client shall be responsible for all sales, use or similar taxes, excluding taxes based solely upon Extole’s income (collectively, the “Taxes”). When Extole has the legal obligation to pay or collect Taxes, the appropriate amount shall be invoiced to and paid by Client unless Client provides Extole with a valid tax exemption certificate authorized by the appropriate taxing authority.
4. Term and Termination.
The initial term of this Agreement will commence on the Effective Date and continue until terminated as provided herein or until the last Subscription Term in all relevant Work Orders have expired, whichever is earlier (“Term”). This Agreement or any given Work Order, respectively, may be terminated by a party: (i) upon thirty (30) days written notice (fifteen (15) days for failure to pay fees), if the other party materially breaches any provision of this Agreement or such Work Order, respectively, and such breach remains uncured after such notice period expires; or (ii) effective immediately, if the other party ceases to do business, or otherwise terminates its business operations without a successor; or (iii) effective immediately, if the other party becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is filed against it and not dismissed within ninety (90) days. Termination of this Agreement shall automatically terminate each outstanding Work Order. The following provisions shall survive any termination or expiration of this Agreement: Sections 2 – 8, as well as those sections of the Agreement that, by their context, should survive.
5. Ownership; Branding.
Client Content. As between the parties, Client owns all Client Content. No implied rights are granted herein and Client and its licensors reserve all rights, title and interest in and to Client Content not expressly granted herein.
Platform; Services. As between the parties, Extole owns the Platform, Services, and Creative. No implied rights are granted herein and Extole and its licensors reserve all rights, title and interest in and to the forgoing that are not expressly granted herein.
Consumer Generated Content. Client understands and agrees that Client’s use of any Consumer Content is entirely at Client’s own choice, risk and discretion and Extole shall have no responsibility or liability for Consumer Content. Client understands and agrees that Extole does not and has no obligation to control Consumer Content, and does not review, edit, substantiate or otherwise determine the accuracy, integrity or quality of the Consumer Content. Extole reserves the right, upon written notice to Client, to refuse to permit access to the Platform to any Consumer, if, in Extole’s reasonable judgment, Consumer Content is misleading, indecent, libelous, unlawful, or otherwise injurious to the interests of Extole, Client, Consumers, the public and/or third parties.
Branding. Extole has the right to include the phrase “Powered by Extole” or “Extole” on any consumer-facing communications generated or hosted or delivered by the Platform.
“Confidential Information” means any non-public data, information and other materials regarding the products, software, services, or business of a party (and/or, if either party is bound to protect the confidentiality of any third party’s information, of a third party) provided by one party (“Disclosing Party”) to the other party (“Receiving Party”) where such information is marked or otherwise communicated as being “proprietary” or “confidential” or the like, or where such information should, by its nature, be reasonably considered to be confidential and/or proprietary. Notwithstanding the foregoing, Confidential Information shall not include information which: (i) is already known to the Receiving Party prior to disclosure by the Disclosing Party; (ii) becomes publicly available without fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without restriction as to disclosure, or is approved for release by written authorization of the Disclosing Party; or (iv) is independently developed or created by the Receiving Party without use of the Disclosing Party’s Confidential Information, as evidenced by the Receiving Party’s records kept in the ordinary course of its business. Except as expressly authorized herein, the Receiving Party agrees to: (a) use the Confidential Information of the Disclosing Party only to perform hereunder (and for Extole, including providing the features and services associated with the normal use of the Platform) or exercise rights granted to it hereunder; (b) treat all Confidential Information of the Disclosing Party as confidential using no less than reasonable care given the nature of the Confidential Information; and (c) disclose the Disclosing Party’s Confidential Information only to those employees and contractors of the Receiving Party who have a need to know such information for the purposes of this Agreement, provided that any such person shall be subject to obligations of non-use and confidentiality with respect to such Confidential Information at least as restrictive as the terms of this Agreement, and the Receiving Party shall remain liable for any non-compliance of such employee or contractor with the terms of this Agreement. Each party shall be entitled to disclose that portion of Confidential Information that is required to provide by law, rule, regulation, court order or regulatory authority, provided that it gives the disclosing party reasonable prior written notice sufficient to permit the disclosing party to contest such disclosure. Each party shall have the right to seek an injunction (without having to post a bond) to prevent any breach or continued breach of this section.
7. Warranties, Extole IP Indemnity; Liability Limitations.
Extole Warranties. Extole warrants to Client that the Services will substantially meet the requirements described in the relevant Work Order and any professional services shall be delivered by personnel with relevant experience and shall be delivered in a manner conforming to generally accepted industry standards for similar services. Client must notify Extole of any warranty deficiency within thirty (30) days of the occurrence of the non-conforming Services in order to receive any warranty remedy. For any breach of the forgoing warranties, Client’s sole and exclusive remedy shall be either (i) for Extole to re-perform such deficient services, or (ii) if re-performance in compliance with this warranty is not possible or practical, then Client shall be entitled to a pro-rata refund of fees paid to Extole directly attributable to the deficient services, in which case either party may terminate the relevant Work and Client will obtain a refund of any prepaid, unused fees for any services terminated.
Mutual Warranties. Each party represents and warrants that it has the necessary power and authority to execute and deliver this Agreement, to perform its obligations hereunder and thereunder, and to consummate the transactions contemplated hereby and thereby.
Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EXTOLE DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM OR ANY ASSOCIATED SERVICES WILL BE AVAILABLE, ERROR FREE, COMPLETELY SECURE, VIRUS FREE, OR WITHOUT INTERRUPTION, OR THAT THEIR FUNCTIONS WILL MEET ANY PARTICULAR REQUIREMENTS, OR THAT PROGRAM DEFECTS OR ERRORS ARE CAPABLE OF CORRECTION OR IMPROVEMENT. THE PLATFORM MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS AND EXTOLE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. Client acknowledges that Extole is not responsible for the integrity of data and information, including without limitation, Client Content and Promotions, including completeness, accuracy, validity, authorization for use and integrity over time, and Extole shall not be responsible for any loss, damage or liability arising out of such data, including any mistakes contained in such data or the use or transmission of such data.
Extole IP Indemnification. Extole will defend, indemnify and hold Client harmless from and against any and all third party claims and any resulting third party liabilities, losses, expenses and damages (collectively, the “Claims”) directly resulting from a claim that the Creative or the Platform (specifically excluding any Promotions, Consumer Content and Client Content) violates or infringes such third party’s U.S. intellectual property right. If the Platform, or any portion thereof becomes, or in the opinion of Extole may become, the subject of a Claim, then Extole may, at its option (i) procure for Client the right to use the Platform free of any third party liability; or (ii) replace or modify the Platform with non-infringing components with substantially similar functionality; or (iii) terminate this Agreement upon notice to Client and refund to Client any prepaid unused fees for affected Services. The forgoing obligations described in this Section define Client’s sole and exclusive remedies for any claims that Creative or the Platform violates or infringes a third party intellectual property right.
Client Indemnification. Client will defend, indemnify and hold Extole, its affiliates and their respective officers, directors, employees, agents and representatives, harmless from and against any and all Claims directly or indirectly resulting from (i) Client’s breach of its obligations set forth in Section 2 or 7, or its violation of Applicable Laws, or (ii) Promotions, Client Content or Consumer Content.
Indemnification Procedure. For all indemnity obligations described herein, the following shall apply. The indemnified party will notify the indemnifying party in a reasonably prompt manner of any claim for which the indemnified party is seeking indemnification pursuant to this Agreement. The indemnifying party may thereafter assume sole control of the defense and settlement of such claim. The indemnified party will have the right to participate at its own sole cost and expense in the defense or settlement of such claim. The indemnified party will provide the indemnifying party with a reasonable amount of assistance in connection with defending or settlement any such claim, at the indemnifying party’s expense.
Limitation of Liability and Exclusions. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT WITH RESPECT TO CLAIMS ARISING UNDER SECTION 6, CLIENT’S OBLIGATIONS TO PAY FEES AND ACTIONS OF CLIENT BEYOND THE SCOPE OF ANY LICENSE GRANTED HEREIN, OR THE INDEMNITY OBLIGATIONS OF A PARTY DESCRIBED HEREUNDER, NEITHER PARTY OR ITS EMPLOYEES, DIRECTORS, OFFICERS, OR AFFILIATES, OR AGENTS SHALL BE LIABLE OR OBLIGATED WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, FOR: (A) ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY LOSS OF USE, LOSS OF BUSINESS, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR LOSS OF PROFIT OR REVENUE, OR (B) ANY AMOUNT IN EXCESS OF AMOUNTS PAID AND PAYABLE BY THE CLIENT TO EXTOLE UNDER THE RELEVANT WORK ORDER DURING THE THEN CURRENT TERM OF THE WORK ORDER, OR (C) COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS. IN NO EVENT SHALL EXTOLE ASSUME LIABILITY FOR DAMAGES, DELAYS OR ANY OTHER ERRORS MADE OR CAUSED BY THIRD PARTIES OR THIRD PARTY WEBSITES OR THIRD PARTY SERVICES.
Non-Solicitation. For a period of one year following the Term, the parties agree not to directly or indirectly solicit or otherwise encourage any employee or contractor of the other party (“Personnel”) to leave the employ of such party; provide that this section will not apply to Personnel who independently (without any encouragement) respond to general solicitations for employment (such as general newspaper advertisements and Internet postings).
Assignment. Either party may assign all or part of this Agreement to any successor-in-interest to all or substantially all of the business or assets of the assigning party pertaining to the subject matter hereof, whether voluntarily or by merger, reorganization, asset sale, or otherwise. Otherwise this Agreement is not transferable or assignable by a party without the prior written consent of a party, which consent shall not be unreasonably withheld, conditioned or delayed Any attempted assignment in violation of this section shall be null and void and have no effect. Subject to the foregoing, this Agreement is binding on any permitted successors and assignees.
Force Majeure. Neither party will be in default or otherwise liable for any delay in or failure of its performance under this Agreement if, to the extent and for so long as such delay or failure arises by any reason beyond its reasonable control, which by its nature could not have been foreseen or, if it could have been foreseen, was unavoidable; provided that the party claiming a force majeure event shall have exercised commercially reasonable efforts and diligence to minimize the effect of any such event.
Governing Law; Venue; Dispute Resolution. This Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the State of California without reference to conflict of laws principles, and shall not be subject to the U.N. Convention on the International Sale of Goods. Each party hereby consents to the exclusive jurisdiction of the courts of the State of California, in the Northern District, as if both parties are domiciled in such location, for the resolution of any dispute based upon or relating to this Agreement. If any action of law or in equity is necessary to enforce or interpret the terms of this Agreement, the substantially prevailing party shall be entitled to reasonable attorney’s fees, costs and necessary disbursements, in addition to any other relief to which such Party is entitled. In the event of disputes between the parties arising from or concerning in any manner the subject matter of this Agreement, the parties will first attempt to resolve the dispute(s) through good faith negotiation.
Independent Contractors. Extole is an independent contractor of Client and nothing in this Agreement will be deemed to create any agency, employee-employer relationship, partnership, or joint venture between the parties. Except as otherwise specifically provided in this Agreement, neither party will have or represent that it has the right, power or authority to bind, contract or commit the other party or to create any obligation on behalf of the other party.
Notices. All notices and consents required or permitted under this Agreement must be in writing (email shall not suffice); must be personally delivered or sent by registered or certified mail (postage prepaid), by reputable international overnight courier, at the parties’ address either set forth below or on the relevant Work Order, and will be effective upon receipt. Each party may change its address for receipt of notices by giving notice of the new address to the other party. To Extole:
225 Bush Street, 16th Floor
San Francisco, CA 94104
Attn: General Counsel
Severability. If any provision of this Agreement is held by a court of law to be illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining provisions of this Agreement will not be affected or impaired thereby and the illegal, invalid, or unenforceable provision will be deemed modified such that it is legal, valid, and enforceable and accomplishes the intention of the parties to the fullest extent possible.
Amendment; Waivers. Any amendment to this Agreement must be in writing, signed by an authorized representative of each party. The failure of either party to enforce any provision of this Agreement, unless waived in writing by such party, will not constitute a waiver of that party’s right to enforce that provision or any other provision of this Agreement.
Third-Party Beneficiary. Neither party intends to, nor shall this Agreement create, in any manner whatsoever, an interest or beneficiary in a third party.
Construction. The headings and captions used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. This Agreement shall be deemed to be the product of all parties hereto, and no ambiguity shall be construed in favor of or against either party. The terms, provisions or conditions of any purchase order or other business form or written authorization used by Client will have no effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of Extole to object to those terms, provisions or conditions. In the event of any conflict between a Work Order and this Agreement, the terms and conditions of this Agreement shall govern, unless the Work Order specifically recites a provision that it intends to supersede this Agreement.
Fraud and Abuse; Illegality. If Extole reasonably believes that the Services are being used for fraudulent or abusive purposes, then Extole may, with written notice to Client, take actions it deems reasonably appropriate including, without limitation, (a) preventing certain persons, IP addresses and/or locations from using the Services, (b) denying the issuance of Rewards to certain persons, and/or (c) cooperating with applicable authorities. Extole reserves the right to discontinue a specific promotion or discontinue access to the Services or Client Content or Consumer Content, if, in Extole’s reasonable judgment, such promotion or access is or would be misleading, indecent, libelous, unlawful, or in violation of third party rights or agreements, or otherwise injurious to the interests of Extole, Client, Consumers, the public and/or third parties; provided that in the event of any such discontinuance, Extole will first notify Client in writing and, provide a pro-rata refund of any pre-paid fees paid for the discontinued Extole Service, if relevant.
Entire Agreement. This Agreement shall constitute the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior discussions, understandings and agreements, whether oral or written, with respect to the subject matter.