End User Services Agreement
Customer and Vocus NM LLC (Company formerly known as Viralheat, hereafter “Company”) hereby agree as follows:
1. Scope. These Terms and Conditions shall apply to Customer’s use of the Company’s subscription services, packaged professional services, all linked pages, content, products and offline components (“Service” or “Services”) identified in one or more ordering documents signed by the parties, including any exhibits or Statements thereto (“Order” or “Orders”). These Terms and Conditions and all Orders (collectively referred to as the “Agreement”) represent the parties’ entire understanding regarding the Services and shall control over any different or additional terms of any purchase order or other non-Company ordering document, and no terms included in any such purchase order or other non-Company ordering document shall apply to the Services. In the event of a conflict between these Terms and Conditions and an Order, the terms of the Order shall control. All capitalized terms not defined herein shall have the meanings attributed in the Order.
2. Right to Use the Services.
2.1 During the Subscription Term set forth in an Order. Company grants to Customer, a nontransferable, nonexclusive, worldwide right to permit those individuals authorized by Customer or on Customer’s behalf, and who are Customer’s employees, agents or contractors (“Users”), to access and use the Services subject to the terms of the Agreement. Company reserves the right to terminate a User’s access to the Software at any time if the User violates, or in Company’s reasonable discretion, is likely to violate, any laws or regulations.
2.2 The Services are provided by Company from a data center facility to which Users have remote access via the Internet. Each Order defines specific Usage Rights, and Customer shall at all times ensure that its use does not exceed its Usage Rights.
2.3 Company’s online platform comprised of tools, databases, APIs, and software solutions developed by Company (the “Software”) allows access to certain proprietary or licensed information, data and materials. No license or other rights in the Software and any content within the Service, exclusive of
Customer Data and, are granted to Customer hereunder, and all rights not expressly granted to Customer herein are expressly reserved to Company or its licensors, as applicable.
2.3 Customer shall be solely responsible for obtaining and maintaining appropriate equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, computers, computer operating system and web browser (collectively, “Equipment”). Customer shall ensure that Equipment complies with all configurations and specifications set forth in Company’s published documentation.
3. Usage Restrictions and Representations.
3.1 Customer shall not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to or provided with the Services (“Software”); (ii) modify, translate, or create derivative works based on the Services or Software; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or Software; (iii) use or access the Services to build or support, and/or assist a third party in building or supporting, products or services competitive to Company; or (iv) remove any proprietary notices or labels from the Services or Software. Customer shall use the Services and Software only for its own internal business operations unless authorized in writing by Company, and not for the operation of a service bureau or timesharing service, or otherwise for the benefit of a third party.
3.2 Customer shall not knowingly or willfully use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with Company’s provision of the Services. Customer shall be responsible for maintaining the security of the Equipment and Customer’s account access passwords. Customer and Company agree to make every reasonable effort to prevent unauthorized third parties from accessing the Services. Customer shall be liable for all acts and omissions of its Users.
4.1 Company owns or has rights to all intellectual property rights in and to the Services and Software (including all derivatives or improvements thereof). All suggestions, enhancements requests, feedback, recommendations or other input provided by Customer or any other party relating to the Services or Software shall be owned by Company, and Customer hereby does and shall make all assignments and take all reasonable acts necessary to accomplish the foregoing ownership. Any rights not expressly granted herein are reserved by Company.
4.2 Customer owns any data, information or material originated by Customer that Customer submits or compiles in the course of using the Services (“Customer Data”). Company has no ownership rights in or to Customer Data. Customer shall be solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to Customer Data. Customer Data shall be deemed to be Customer Confidential Information pursuant to Section 9 below. Notwithstanding the foregoing, to the extent that any Customer Data is only viewable via the Software, Customer may not be able to view such Customer Data after termination of this Agreement.
5. Billing and Payment.
5.1 Customer shall pay all fees set forth in an Order. All fees are non-cancelable and nonrefundable, except as expressly specified in Section 7.2 of the Agreement. All fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties (excluding U.S. taxes based on Company’s income), even if such amounts are not listed on an Order. Customer shall pay all fees in U.S. Dollars or in such other currency as agreed to in writing by the parties.
5.2 All amounts invoiced hereunder are due and payable as specified in the Order. Unpaid invoices that are not the subject of a written good faith dispute may be subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all reasonable expenses of collection.
5.3 If at any time Company determines that Customer is exceeding the Usage Rights, Company shall notify Customer and Customer shall bring its usage within the limits of such Usage Rights. If Customer fails to do so within thirty (30) days of receipt of Company’s notice, Company reserves the right to charge and Customer agrees to pay Company’s then-current usage fees for such overage, even for periods of overage prior to Company’s notice.
6. Term and Termination.
6.1 The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant subscription term. The per-unit pricing during any automatic renewal term will be the same as that during the immediately prior term unless Company gives written notice of a pricing increase at least sixty (60) days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter (Customer may notify Company of non-renewal if it does not agree with the pricing modifications provided it does so within the timeframes set forth in this Section 6.1). All sections of the Agreement which by their nature should survive termination will survive, including without limitation, accrued rights to payment, use restrictions and indemnity obligations, confidentiality obligations, warranty disclaimers, and limitations of liability.
6.2 In the event of a material breach by either party, the non-breaching party shall have the right to terminate the applicable Order for cause if such breach has not been cured within thirty (30) days of written notice from the non-breaching party specifying the breach in detail. Company may immediately suspend Customer’s password, account, and access to the Services if (i) Customer fails to make payment due within ten business days after Company has provided Customer with notice of such failure; or (ii) Customer violates Section 2.1, 3, or 9 of these Terms and Conditions. Any suspension by Company of the Services under the preceding sentence shall not relieve Customer of its payment obligations under the Agreement. If Company terminates an Order for Customer’s material breach, all fees set forth on such Order are immediately due and payable.
6.3 Upon any termination or expiration of an Order, Customer’s right to access and use the Services covered by that Order shall terminate. Customer acknowledges and agrees that Company has no obligation to retain Customer Data and that Company may irretrievably delete and destroy Customer Data after thirty (30) days following the termination of the Agreement or in the ordinary course of its business processes.
7. Representations, Disclaimer of Warranties, Indemnities.
7.1 Each party represents and warrants to the other party that it has the power and authority to enter into the Agreement. Company warrants to Customer that it will use best efforts to (i) perform the Services substantially in accordance with its documentation under normal use; and (ii) provide the Services in a manner consistent with generally accepted industry standards. Customer must notify Company of any warranty deficiencies within thirty (30) days from performance of the relevant Services in order to receive warranty remedies.
7.2 For breach of the express warranty set forth above, Customer’s exclusive remedy shall be the re-performance of the deficient Services. If Company cannot re-perform such deficient Services as warranted, Customer shall be entitled to recover a pro-rata portion of the fees paid to Company for such deficient Services, and such refund shall be Company’ entire liability.
7.3 The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing, on its website, or by e-mail of any scheduled unavailability of the Services.
7.4 (a) Company shall defend, indemnify and hold Customer harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Customer by a third party alleging that the Software as contemplated hereunder infringes the intellectual property rights of a third party; provided, that Customer (i) promptly gives written notice of the Claim to Company; (ii) gives Company sole control of the defense and settlement of the Claim (provided that Company may not settle or defend any Claim unless it unconditionally releases Customer of all liability); and (iii) provides to Company, at Company’s cost, all reasonable assistance. Company’s indemnification obligation does not cover third party claims arising from: (1) modifications to the Software by anyone other than Company or its authorized agents and contractors; (2) use of the Software by Customer in combination with other software or equipment not provided by Company where the Software, but for such combination, would not be infringing; or (3) Customer’s failure to use the Software in accordance with the terms and conditions in this Agreement.
(b) Customer shall defend, indemnify and hold Company harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with Claims made or brought against Company by a third party alleging that Customer Data, or Customer’s use of the Services in violation of the Agreement, infringes the intellectual property rights of, or has otherwise harmed, a third party or violates any law or regulation; provided, that Company (i) promptly gives written notice of the Claim to Customer; (ii) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim unless it unconditionally releases Company of all liability); and (iii) provides to Customer, at Customer’s cost, all reasonable assistance.
7.5 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, COMPANY AND ITS THIRD PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND QUALITY. COMPANY AND ITS THIRD PARTY PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, SUITABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR THE RESULTS CUSTOMER MAY OBTAIN BY USING THE SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY AND ITS THIRD PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (i) THE OPERATION OR USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE; OR (ii) THE QUALITY OF THE, SERVICES WILL MEET CUSTOMER’S REQUIREMENTS. CUSTOMER ACKNOWLEDGES THAT NEITHER COMPANY NOR ITS THIRD PARTY PROVIDERS CONTROLS THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY COMPANY, THE SERVICES ARE PROVIDED TO CUSTOMER ON AN “AS IS” BASIS.
8. Limitation of Liability. NEITHER PARTY OR ITS THIRD PARTY LICENSORS SHALL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (i) FOR ERROR OR INTERRUPTION OF USE, INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY OR LOSS OF BUSINESS; OR (ii) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES. Except for a material breach of the confidentiality provisions or claims related to personal injury or property damage caused solely by Company’s gross negligence or willful misconduct, Company’s entire liability and Customer’s exclusive remedy for damages for any claims arising under or in connection with this Agreement, regardless of the cause of action, whether in contract or in tort (including without limitation, breach of warranty and negligence claims) shall be limited to Customer’s actual, awarded direct damages, not to exceed the amount actually paid by Customer under this Agreement during the twelve months immediately preceding the month in which the cause of action arose. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the exclusions set forth above may not apply.
9. Confidential Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Such information includes, without limitation, Customer Data, information related to Customer’s login identifiers and credentials for Accounts and the nature and performance of Customer’s marketing programs. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use (except as expressly permitted in Section 10 below) or divulge to any third person any such Confidential Information. The preceding shall not prevent Company from disclosing Confidential Information to its own employees, agents, affiliates, or authorized consultants or vendors who have a need to know the Confidential Information for the purposes of this Agreement. The Disclosing Party agrees that the foregoing shall not apply with respect to Confidential Information after five years following the termination of the Agreement or any Confidential Information that the Receiving Party can document (a) is or becomes generally available to the public; or (b) was in its possession or known by it prior to receipt from the Disclosing Party; or (c) was rightfully disclosed to it by a third party; or (d) was independently developed without use of any Confidential Information of the Disclosing Party; or (e) is required by law. Customer Data will be destroyed as set forth in Section 6.3, and, upon Customer’s request, Company shall certify to such destruction in writing.
10. Collection of Information. Notwithstanding anything else in the Agreement or otherwise, Company may monitor Customer’s use of the Services and use Customer Data in an aggregate and anonymous manner, compile statistical and performance information related to the provision and operation of the Services, and may make such information publicly available, provided that such information does not incorporate Customer Data and/or identify Customer’s Confidential Information. Company retains all intellectual property rights in such information. Company uses information collected from Customer to provide the Service. Company may share such information with its affiliates or third parties that work on Company’s behalf or provide services to Company in relation to Company’s provision of the Service to Customer, including but not limited to necessary hardware, software, networking, storage, and technologies required to run the Service, and Customer hereby consents to such use of information by affiliates and third parties. Customer acknowledges and agrees that such information may be transferred to, stored in, or accessed from outside the United States solely in order to provide the Service or for Company to fulfill its other obligations under this Agreement.
11. Notices. Company may give notice applicable to Company’s general Services customer base by means of a general notice on the Services portal, and notices specific to Customer by electronic mail to Customer’s e-mail address on record in Company’s account information or by written communication sent by first class mail or pre-paid post to Customer’s address on record in Company’s account information. If Customer has a dispute with Company, wishes to provide a notice under the Agreement, or becomes subject to insolvency or other similar legal proceedings, Customer shall promptly send written notice to Company at 12051 Indian Creek Court, Beltsville, MD 20705, Attention: Legal Department.
12. Force Majeure. Neither party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than twenty (20) days, either party may cancel unperformed Services upon written notice. Customer shall still be obligated to pay for all fees due up to the date of termination. This section does not excuse either party of its obligations to take reasonable steps to follow its normal disaster recovery procedures or Customer’s obligation to pay for the Services provided.
13. General provisions.
13.1 The Agreement and all Order(s), represent the parties’ entire understanding relating to the Services, and supersede any prior or contemporaneous, conflicting or additional communications. The exchange of a fully executed Order by fax or electronic signature shall be sufficient to bind the parties to the Terms and Conditions of the Agreement and such Order. The Agreement may be amended only by written agreement of the parties. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
13.3 No joint venture, partnership, employment, or agency relationship exists between Company and Customer as a result of the Agreement or use of the Services. Neither party may assign the Agreement without the prior written approval of the other, such approval not to be unreasonably withheld or delayed, provided that such approval shall not be required in connection with a merger or acquisition of all or substantially all of the assets of the assigning company. Any purported assignment in violation of this Section shall be void.
13.4 Neither party may assign this Agreement in whole or in part without the other party’s prior written consent; however Company may assign this Agreement to a successor-in-interest of all or substantially all of its stock, assets, or voting securities, provided that such successor agrees to be bound by the terms of this Agreement. Any attempted assignment in violation of this provision will be void.
13.5 If any provision of this Agreement is determined to be unenforceable or invalid by a court of competent jurisdiction, such provision shall be construed to the maximum extent possible and the Agreement shall otherwise remain in effect.
13.6 This Agreement shall be governed by the laws of the State of Maryland and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Any claim arising from this Agreement shall be brought in the state and federal courts having jurisdiction in Maryland. The Uniform Computer Information Transactions Act will not apply to the Agreement. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. Except for actions for nonpayment or breach of either party’s proprietary rights, no action, regardless of form, arising out of or relating to the Agreement may be brought by either party more than two years after the cause of action has accrued.
13.7 Failure by either party to enforce a provision of this Agreement shall not be deemed a waiver of any other provision. A waiver will not be effective unless in writing signed by the waiving party.
13.8 Each signatory hereto represents that he or she is authorized to sign this Agreement on behalf of his or her respective company.