THIS END USER LICENSE AGREEMENT (this “Agreement”) is a binding agreement between Socialie Apps, LLC, (“Socialie”), and you or the entity on whose behalf you are entering into this Agreement (“Subscriber”). This Agreement governs Subscriber’s use of Socialie’s “Suggest” and “Pindrop” Application (each referred to herein as the “Application”), which among other things enable users to manage social media campaigns and publications to social media platforms through a network of publishers (the “Publishers”) on mobile devices. Each of Socialie and Subscriber may be referred to individually in this Agreement as a “Party” and together as the “Parties.” The Application is licensed to Subscriber, not sold.
SOCIALIE PROVIDES THE APPLICATION SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT SUBSCRIBER ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE “I ACCEPT” BUTTON OR USING THE APPLICATION YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT SUBSCRIBER IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE 18 YEARS OF AGE OR OLDER; AND (II) IF SUBSCRIBER IS A CORPORATION OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUBSCRIBER AND BIND SUBSCRIBER TO ITS TERMS. IF SUBSCRIBER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, SOCIALIE WILL NOT AND DOES NOT LICENSE THE APPLICATION TO SUBSCRIBER AND YOU MUST NOT USE THE APPLICATION OR DOCUMENTATION.
Access. Subject to the terms and conditions of this Agreement, Socialie hereby grants to Subscriber a non-exclusive, non-assignable, non-transferable (except as set forth in Section 10(g)), right to access and use, during the Term, the Application for your own personal non-commercial use strictly in accordance with the Application documentation.
Restrictions. Subscriber agrees that it will not (i) copy, reproduce, create derivative works of, disclose or publicly display the Application; (ii) decompile, disassemble, reverse engineer or otherwise attempt to determine the functionality of the Application; (iii) directly or indirectly license, distribute, resell, rent, lease, subcontract, operate as a service bureau or otherwise make the Application available to any third party; (iv) use the Application to develop a product or service that is the same or substantially similar to the Application; (v) disclose or share any passwords or other security or authentication with respect to the Application (including, credentials for access to the administration dashboard for sending content to groups of Publishers, activity dashboard and analytics for published content of the Application) to or with any other person or entity; (vi) use the Application for a purpose other than that set forth in this Agreement or in a manner that violates any applicable law, rule or regulation; (vii) remove, conceal or alter any personally identifiable information, identification, copyright or proprietary rights notices or labels from or on the Application; or (viii) access or permit any third party to access (or attempt or permit any third party to attempt to access) any content or information (including, personally identifiable information) other than through the Application using credentials provided by Socialie to Subscriber.
No Implied License. This Agreement and the conduct of the Parties in connection with this Agreement are not intended to, and shall not be construed to, convey any rights to Subscriber or any third party under any Intellectual Property Rights (as such term is defined in Section 5) of Socialie in any manner, including as a result of patent exhaustion, estoppel or implied license doctrines in any jurisdiction or any similar doctrine, whether by operation of law or otherwise.
Enhancements. Socialie reserves the right to upgrade, enhance, change or modify the Application at any time in its sole discretion (“Enhancements”). Any Enhancements made available to Subscriber by Socialie, if any, will be subject to the terms of this Agreement, except to the extent that conflicting or more restrictive provisions are agreed upon in future agreements relating to such Enhancements. During the Term, Socialie will provide Subscriber with any Enhancements that Socialie distributes to its other customers generally without additional charge. If Socialie distributes any Enhancement as an option or new product for which it charges an additional fee, it will make such option or new product available to Subscriber on the same terms as it offers generally to other similarly situated customers.
Protection of User Access IDs. Subscriber acknowledges and agrees that user identifications and passwords are unique to the authorized employees of Subscriber who are given administrative access by Subscriber to the Application for managing Subscriber's invites to Publishers in connection with Subscriber's social media campaign and shall be maintained in strict confidence. Subscriber shall implement and maintain all such administrative, physical and technical safeguards as may be necessary to prevent unauthorized users from gaining entry or access to the Application. Subscriber shall limit access to the Application to its employees who are managing the administrative functions of the Application, and Subscriber shall be solely responsible for any and all acts committed by such employees as if such employee were “Subscriber” hereunder. Subscriber shall not access the Application for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes Socialie may, in its sole discretion, immediately disable Subscriber access to the Application and any user name, password or other identifier, whether chosen by you or provided by us, at any time and without notice to Subscriber if, in Socialie’s opinion such action is necessary to protect the security of the Application.
User Generated Content. Subscriber represents and warrants to Socialie that Subscriber has the legal right and authorization to submit, upload or post any text, communications, comments, ideas, suggestions, information, files, videos, images or other materials that Subscriber submits, uploads or posts through, to or on the Application (collectively “User Generated Content”), and to provide all User Generated Content to Socialie for the purposes and Socialie’s use as set forth herein. Subscriber hereby grants to Socialie a fully paid, royalty-free, irrevocable, transferable right and license to use the User Generated Content to provide the Application. Socialie is and shall be under no obligation to pay to Subscriber any compensation for any User Generated Content. Subscriber shall not post on or upload to the Application or any forum available to Publishers on the Application any User Generated Content or other communications that: (i) violate or infringe upon the Intellectual Property Rights, rights of privacy or publicity, moral rights or any other proprietary rights of any third party; (ii) are unlawful, defamatory, threatening or are otherwise offensive or objectionable; (iii) contain a virus or any other harmful component; (iv) violate any applicable local, state, national or international law or regulation; or (iv) otherwise violate the terms of this Agreement, or any use Socialie deems unacceptable in its sole discretion. Socialie does not regularly review User Generated Content or other communications, but does reserve the right (but not the obligation) to monitor and edit or remove any User Generated Content or other communications submitted to the Application. You agree not to impersonate any person or entity, or otherwise mislead as to the origin of any User Generated Content or other communication. You are and shall remain solely responsible for the content of any User Generated Content or other communications you make. Socialie and its affiliates take no responsibility and assume no liability for any User Generated Content or other communications submitted to the Application by you or any third party.
Security of Application. Subscriber is prohibited from violating or attempting to violate the security of the Application, including, without limitation, (i) accessing data not intended for such Subscriber or logging onto a server or an account which Subscriber is not authorized to access; or (ii) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; or (iii) accessing or using the Application or any portion thereof without authorization, in violation of this Agreement or in violation of applicable law. Violations of system or network security may result in civil or criminal liability. Socialie will investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting Subscribers who are involved in such violations. Subscriber agrees not to use any device, software or routine to interfere or attempt to interfere with the proper working of this Application or any activity being conducted through this Application.
Fees. The license fees payable to Socialie by Subscriber hereunder are as set forth in the separate order form or similar ordering document provided by Socialie describing the license fees, subscription fees and any other fees owed by you.
Term. The term of this Agreement commences when you sign up or otherwise use the Application and will continue in effect until terminated by you or Company as set forth in this Section 3 (the “Term”).
Termination. Socialie may terminate this Agreement and Subscriber’s access to the Application for any reason and at any time upon thirty (30) days’ advance notice to Subscriber. Subscriber may terminate this Agreement by giving notice to Socialie that Subscriber no longer requires access to the Application. Notwithstanding the foregoing, in the event Subscriber breaches any term of this Agreement, Socialie may terminate this Agreement immediately upon notice to Subscriber and/or suspend access to the Application without terminating this Agreement and without advance notice. Socialie’s right to terminate this Agreement is in addition to all other rights as are available to Socialie at law or equity.
Effect of Termination. Upon termination or expiration of this Agreement, all rights granted to Subscriber under this Agreement will also terminate and the Subscriber shall immediately cease use of the Application and shall return to Socialie or destroy (at Socialie’s discretion) all user manuals and other documentation in its possession. Sections 1(b), 1(c), 3(c) and 4 through 8 shall survive the expiration or termination of this Agreement for any reason.
Obligations. As used herein, “Confidential Information” means all confidential information disclosed by one Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as proprietary or confidential or that reasonably should be understood to be proprietary or confidential. Each Party shall use the same degree of care to safeguard the confidentiality of the Confidential Information that it uses to safeguard the confidentiality of its own confidential information, but in no event less than reasonable care. Without limiting the foregoing, each Receiving Party agrees (i) to observe complete confidentiality with respect to the Confidential Information of the Disclosing Party; (ii) not to disclose, or permit any third party to disclose, the Confidential Information of the Disclosing Party (or any portion thereof) without prior written consent of Disclosing Party; and (iii) to ensure that any employees or any third parties who receive access to the Confidential Information are advised of the confidential and proprietary nature thereof and are subject to written agreements prohibiting them from disclosing or using the Confidential Information other than for the benefit of the Receiving Party, in accordance with this Agreement. It is expressly agreed by the Parties that Confidential Information of Socialie includes the Application.
Exclusions. The following shall not be deemed to be Confidential Information for purposes of this Agreement: (i) information already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (ii) information generally known to the public other than as a result of disclosure in violation of this Section 4; (iii) information lawfully obtained from any third party that has no duty or obligation of confidentiality with respect to such information; and (iv) information developed by the Receiving Party independently and without reference to information provided by the Disclosing Party.
Equitable Relief. Each Receiving Party acknowledges that the Confidential Information of the Disclosing Party is important, material and confidential, and gravely affects the successful conduct of the business of the Disclosing Party, and that any breach of this Section 4 shall constitute a material breach of this Agreement. The Parties recognize that a breach of Section 4 would result in irreparable harm for which monetary damages would not be adequate. In the event of such breach, and without limiting the right of a Party to seek any other remedy or relief to which it may be entitled under law, each Receiving Party agrees that the Disclosing Party will be entitled to equitable relief, including temporary and permanent injunctive relief and specific performance.
All right, title and interest in and to the Application and all Intellectual Property Rights therein are and shall remain exclusively with Socialie, its licensors and their respective successors and assigns. Subscriber is not granted any right, title or interest whatsoever in the Application, other Confidential Information of Socialie, or any Intellectual Property Rights associated with any of the foregoing. To the extent Subscriber provides any verbal or written ideas or feedback to Socialie concerning the Application ("User Feedback”), Subscriber hereby assigns, transfers and conveys to Socialie, or its designee, all worldwide right, title, and interest in and to any and all User Feedback, including any ideas, findings, conclusions, concepts, improvements and Intellectual Property Rights in such User Feedback. “Intellectual Property Rights” means all intellectual property and other similar proprietary rights, in any jurisdiction, including rights in and to (a) trade secrets, know-how and other confidential or non-public business information; (b) original works of authorship and any moral rights relating thereto; (c) trademarks, service marks, trade dress and other indications of origin; and (d) patents, invention disclosures, inventions and discoveries.
THE APPLICATION IS PROVIDED “AS-IS” WITHOUT ANY REPRESENTATIONS OR WARRANTIES. SOCIALIE EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WHETHER ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE, INCLUDING ANY WARRANTY OF ACCURACY, COMPLETENESS, PERFORMANCE, CURRENCY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE. Without limiting the generality of the foregoing or the limitation of liability set forth in Section 7>, Subscriber acknowledges and agrees that (a) Subscriber is using the Application at its own discretion and risk; (b) Subscriber is responsible for any and all decisions and conclusions made based on the data and output that results from use of the Application; and (c) neither Socialie nor any of its suppliers or licensors shall be responsible for any data or output that results from Subscriber’s use of the Application. The foregoing provisions shall be enforceable to the maximum extent permitted by applicable law.
LIMITATION OF LIABILITY; INDEMNIFICATION
Limitation on Liability. IN NO EVENT SHALL SOCIALIE OR ANY OF ITS SUPPLIERS OR LICENSORS BE LIABLE TO SUBSCRIBER OR ANY OTHER PERSON OR ENTITY FOR DAMAGES ARISING OUT OF THE USE OF THE APPLICATION OR ARISING UNDER THIS AGREEMENT, WHETHER IN TORT, CONTRACT OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IN NO EVENT SHALL SOCIALIE OR ANY OF ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL, OR SIMILAR DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOSS OF WORK PRODUCT, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, WHETHER IN TORT, CONTRACT, OR OTHERWISE. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 7 SHALL REMAIN FULLY EFFECTIVE EVEN IF THE REMEDIES AVAILABLE TO A PARTY FAIL OF THEIR ESSENTIAL PURPOSE OR ARE OTHERWISE HELD TO BE UNENFORCEABLE. The foregoing provisions shall be enforceable to the maximum extent permitted by applicable law.
Subscriber Indemnification. Subscriber shall defend, indemnify, and hold harmless Socialie, and its officers, directors, managers, equity holders, employees, agents, contractors, suppliers, and licensors against all costs, expenses, losses, and damages (including reasonable attorneys’ fees and costs) incurred or awarded as a result of or in connection with claims of third parties against Socialie based on or arising directly or indirectly out of (i) Subscriber’s use of the Application and any User Generated Content, (ii) a breach by Subscriber of any terms of this Agreement, or (iii) Subscriber’s violation of any applicable laws or regulations.
The Parties shall use reasonable efforts to resolve amicably any disputes that may relate to or arise under this Agreement. Any disputes that cannot be resolved in such manner shall be settled exclusively by arbitration conducted under the auspices of the American Arbitration Association (the “AAA”) in Philadelphia, Pennsylvania, in accordance with the Commercial Arbitration Rules of the AAA; provided that either Party may seek injunctive relief from any court of competent jurisdiction. The award rendered in such arbitration shall be final, nonappealable and bind the Parties, and any court having jurisdiction with respect thereto can enter judgment upon the award. Without limiting the generality of the foregoing, the following specific provisions shall also apply: (a) the proceedings shall be held before a single arbitrator; (b) the arbitrators shall apply the law chosen in Section 10(b); (c) the prevailing Party shall be entitled to recover, in addition to any other amounts awarded, the full amount of such prevailing Party’s legal and other related fees, costs and expenses, including attorneys’ fees; (d) the costs of the arbitration (other than the Parties’ costs and expenses) will be allocated among the Parties in the discretion of the arbitrator; and (e) the decision of the arbitrator shall be in a writing stating the facts and law upon which the decision rests and shall be given no later than ten (10) days following the conclusion of the necessary hearings. Notwithstanding the foregoing, Socialie shall be permitted to bring any intellectual property claim or any claim involving the breach of any confidentiality obligations under this Agreement in any court of competent jurisdiction.
The United States Government regulates transfer of technology across national boundaries. Subscriber shall not acquire, ship, transport, export or reexport the Application or any part thereof, directly or indirectly, into any country in violation of any applicable law (including the United States Export Administration Act and the regulations promulgated thereunder) nor will Subscriber use the Application or any part thereof for any purpose prohibited by such laws or any other laws.
Entire Agreement. This Agreement sets forth the entire agreement and understanding of the Parties relating to the subject matter hereof and supersedes any and all prior oral and written agreements, understandings and quotations relating thereto. No waiver, amendment, alteration, modification, or cancellation of any of the provisions of this Agreement shall be binding unless made in writing and signed by the parties.
Governing Law; Jurisdiction; Venue. This Agreement will be governed by, construed and enforced in accordance with the laws of the Commonwealth of Pennsylvania without regard for conflict of law rules. Any suit, action, or claim arising under, or related to, this Agreement may be brought exclusively in the courts located in Philadelphia, Pennsylvania.
Severability. If any provision of this Agreement is invalid or unenforceable, such provision will be enforced only to the extent that it is not in violation of such law or is not otherwise unenforceable and all other provisions of this Agreement will remain in full force and effect.
Waiver. The failure of a Party in any one or more instances to insist upon strict performance of any of the terms of this Agreement will not be construed as a waiver or relinquishment, to any extent, of the right to assert or rely upon any such terms on any future occasion.
Force Majeure. Neither Party will be liable for any delay or failure of its performance under this Agreement that results from causes beyond its control and not reasonably foreseeable by the affected Party, each despite commercially reasonable operations and preparations.
Notices. Any notice required or permitted to be given under this Agreement must be in writing and will be deemed effective (i) if given by personal delivery, upon such personal delivery, (ii) if given by nationally-recognized courier or mail service, at the time that the notice is delivered to the receiver’s premises according to the tracking records of the courier or mail service, (iii) if to Socialie, by email to email@example.com, or (iv) or if to Subscriber, to the last known email address of the Subscriber. Either Party may change its address for notice by written notice to the other Party.
Assignment of Agreement. Subscriber may not sublicense, lease, assign or otherwise transfer, in whole or in part, this Agreement without the prior written consent of Socialie; provided, however, that notwithstanding the foregoing, any or all of the rights and interests of Subscriber under this Agreement may be assigned (i) to any purchaser of substantially all of the assets of such Party, or (ii) as a matter of law to the surviving entity in any merger, consolidation, share exchange or reorganization involving such Party; provided further that the assigning Party shall make proper provision so that the successors and assigns shall assume the obligations set forth in this Agreement. Any assignment or purported assignment made in violation of the foregoing provision shall be void ab initio. Socialie may assign this Agreement in its discretion.
Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument, and in pleading or proving any provision of this Agreement, it shall be necessary to produce more than one such counterpart. The reproduction of signatures by means of facsimile device or other electronic means shall be treated as though such reproductions are executed originals.
Rules of Construction. Definitions contained in this Agreement apply to singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms. Words in the singular shall be held to include the plural and vice versa, and words of one gender shall be held to include the other gender as the context requires. The terms “hereof,” “herein,” “hereby” and “herewith” and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement as a whole and not to any particular provision of this Agreement. The terms “includes” and the word “including” and words of similar import shall be deemed to be followed by the words “without limitation.” Section and subsection references are to the Sections and subsections to this Agreement unless otherwise specified. Headings and captions herein are inserted for convenience, do not constitute a part of this Agreement, and shall not be admissible for the purpose of proving the intent of the Parties.
Publicity Reference. Socialie may include the Subscriber in its general listing of Subscribers, reference lists, press releases, success stories and other marketing materials.