Terms and Conditions

Last updated:  April 25, 2016

These Terms and Conditions (these “Terms and Conditions”) are by and between Social123, Inc. (“Social123”) and the customer identified in the applicable Order Form (“Customer” or “You”).   The applicable Order Form and these Terms and Conditions constitute the entire agreement between Social123 and Customer (the “Agreement”).  BY EXECUTING AN ORDER FORM THAT INCLUDES THIS AGREEMENT BY REFERENCE OR USING THE SOCIAL123 PORTAL OR THE ONE-TIME DELIVERABLES, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS REVIEWED AND ACCEPTS THESE TERMS AND CONDITIONS.  IF CUSTOMER DOES NOT AGREE WITH THESE TERMS IN THEIR ENTIRETY, DO NOT ACCESS OR OTHERWISE USE THE SOCIAL 123 PORTAL OR THE ONE-TIME DELIVERABLES.  SOCIAL123 MAY MAKE CHANGES TO THESE TERMS AND CONDITIONS AT ANY TIME.  SOCIAL123 WILL POST NOTICE OF THE UPDATED TERMS AT WWW.SOCIAL123.COM. CUSTOMER’S CONTINUED USE OF THE SOCIAL123 PORTAL OR THE ONE-TIME DELIVERABLES AFTER SUCH CHANGES HAVE BEEN POSTED WILL SIGNIFY CUSTOMER’S ASSENT TO AND ACCEPTANCE OF THE REVISED TERMS AND CONDITIONS.

 

1.              DEFINITIONS.

“Aggregated Data” means any non-personally identifiable, technical, statistical or analytical data gathered or generated directly by the Social123 Portal or by use of the Social123 Portal, which Social123 collects, gathers and aggregates periodically as part of its services.  Aggregated Data is de-identified data and information that Social123, its affiliates, licensors, partners and designated agents may use (on a non-attributed basis) to monitor and improve its products, the Social123 Portal, the One-Time Deliverables, for benchmarking purposes or to provide customized services or technologies to its customers.  Social123 collects and uses this information in accordance with its privacy policy (available at www.Social123.com/privacy) and in accordance with applicable data protection laws.

“Authorized End User” means, collectively, any individual employees, agents, or contractors of Customer accessing or using the Social123 Portal under the rights granted to Customer pursuant to this Agreement.  The number of Authorized End Users is as set forth and described in the applicable Order Form.

“Confidential Information” means all written or oral information, disclosed by either party to the other, related to either party or a third party, that has been identified as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably to be treated as confidential, including, without limitation, trade secrets, know-how, technology specifications, Authorized End User and customer lists, sales, cost or other unpublished financial information or marketing data.  Confidential Information includes without limitation, Social123’s proprietary processes and information associated with the Social123 Portal, the Documentation, the One-Time Deliverables, Customer Data, any related data of Social123, the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes of either party.

“Customer Data” means all the data, content and/or information provided, uploaded, and/or posted by Authorized End Users in connection with their authorized use of the Social123 Portal or provided in connection with the One-Time Deliverables.

“Documentation” means technical, text and/or graphical documentation or manuals, whether in digital or printed format, that describe the features, functions and operation of the Social123 Portal, which materials are designed to facilitate use of the Social123 Portal and which are available at www.Social123.com.

“Intellectual Property Rights” means all intellectual property rights or similar proprietary rights, including (a) patent rights and utility models, (b) copyrights and database rights, (c) trademarks, trade names, domain names and trade dress and the goodwill associated therewith, (d) trade secrets, (e) mask works, and (f) industrial design rights; in each case, including any registrations of, applications to register, and renewals and extensions of, any of the foregoing in any jurisdiction in the world.  Intellectual Property Rights also include any and all rights associated with particular information that are granted by law and that give the owner, independent of contract, exclusive authority to control use or disclosure of the information, including enforceable privacy rights and any rights in databases recognized by applicable law.

“One-Time Deliverables” means the deliverables purchased by Customer from time to time as set forth in an Order Form.

“Order Form” means the ordering documents for access to the Social123 Portal and/or purchase  of One-Time Deliverables from Social123 that are executed hereunder by Social123 and Customer from time to time, including modifications, supplements and addend thereto.  Order Forms will be deemed incorporated herein.

“Social123 Portal” means Social123’s proprietary technology and application software provided by Social123 on a data-as-a-service basis through which Social123 provides data assurance, data cleansing, data appending, data origination, data aggregation and other data enhancement services, and the Documentation.

“Subscription” means Customer’s and its Authorized End Users’ access rights to the Social123 Portal, which may include support as set forth in Section 3.4 below.

“Subscription Term” means the subscription period for Customer’s use of the Social123 Portal as set forth in an Order Form.

2.              ORDERING AND PURCHASES. Subject to the terms and conditions contained in the Agreement, Customer may purchase subscriptions to access and use the Social123 Portal and may purchase One-Time Deliverables pursuant to Order Forms.  Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Social123 regarding any future functionality or features.  All Order Forms will be deemed part of and subject to this Agreement. If there is any inconsistency between an Order Form and these Terms and Conditions, the Order Form will control.

 

3.              ACCESS AND USE.

3.1.          Provision of Access to the Social123 Portal.  Subject to the terms and conditions contained in this Agreement, Social123 hereby grants Customer a non-exclusive, non-transferable right to access the features and functions of the Social123 Portal during the Subscription Term, solely for use by Authorized End Users in accordance with the terms and conditions herein.  Such use will be limited to Customer’s internal use.  Customer acknowledges and agrees that, as between Customer and Social123, Customer will be responsible for all acts and omissions of Authorized End Users, and any act or omission by an Authorized End User which, if undertaken by Customer, would constitute a breach of this Agreement, will be deemed a breach of this Agreement by Customer.  Customer will undertake reasonable efforts to make all Authorized End Users aware of the provisions of this Agreement as applicable to such Authorized End User’s use of the Social123 Portal, and will cause Authorized End Users to comply with such provisions. The Social123 Portal is made available to Customer solely as hosted by or on behalf of Social123, and nothing in this Agreement will be construed to grant Customer any right to receive any copy of the Social123 Portal or any software.  The scope of the Subscription is based upon Customer’s then current subscription level as further specified in the applicable Order Form. The number of Authorized End Users will be set forth in the applicable Order and determined on an individual, named user basis rather than on a concurrent user or shared user basis.

3.2.          Documentation License.  Subject to the terms and conditions contained in this Agreement, Social123 hereby grants Customer a non-exclusive, non-transferable right and license to use the Documentation during the Subscription Term for Customer’s internal purposes in connection with use of the Social123 Portal as contemplated herein.  Copies of the Documentation may not be distributed to third parties.  Customer’s access and use of the Social123 Portal will comply with all other conditions set forth in the Documentation.

3.3.          Aggregated Data.  Customer acknowledges and agrees that Social123 may compile anonymous Aggregated Data.  To the extent necessary, Customer hereby grants Social123 a royalty-free, nonexclusive, irrevocable, right and license (with the right to sublicense through multiple tiers) to develop anonymous Aggregated Data from Customer’s use of the Social123 Portal and the One-Time Deliverables.

3.4.          Support.  Social123 will provide Customer standard support offerings that Social123 generally makes available to its customer base.

3.5.          Suspension.  Notwithstanding anything to the contrary in this Agreement, Social123 may temporarily suspend Customer’s and any Authorized End User’s access to any portion or all of the Social123 Portal if Social123 reasonably determines that (i) there is a threat or attack on any portion of the Social123 Portal; (ii) Customer’s or any Authorized End User’s use of the Social123 Portal disrupts or poses a security risk to the Social123 Portal or any other customer or vendor of Social123; (iii) Customer or any Authorized End User is/are using the Social123 Portal for fraudulent or illegal activities; (iv) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding or (v) Social123’s provision of the Social123 Portal to Customer or any Authorized End User is prohibited by applicable law (each such suspension, a “Service Suspension”). Social123 will make commercially reasonable efforts, circumstances permitting, to provide written notice of any Service Suspension to Customer (including notices sent to Social123’s registered email address) and to provide updates regarding resumption of access to the Social123 Portal following any Service Suspension. Social123 will use commercially reasonable efforts to resume providing access to the Social123 Portal as soon as reasonably possible after the event giving rise to the Service Suspension is cured.  Social123 will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Customer or any Authorized End User may incur as a result of a Service Suspension.

3.6.          Third Party Data. Customer acknowledges and agrees that third party data, if any, which is provided through the Social123 Portal or included in One-Time Deliverables (“Third Party Data”) is additionally subject to the applicable flow through provisions available at www.Social123.com.

 

4.              One-Time Deliverables.  Social123 will use commercially reasonable efforts to provide the One-Time Deliverables as set forth in the applicable Order Form.  Each Order Form will include, at a minimum: (i) a description of the One-Time Deliverable(s), (ii) the schedule for the provision of the One-Time Deliverable(s), and (iii) the applicable fees and payment terms for such One-Time Deliverables.  One-Time Deliverables will be provided in a professional and workmanlike manner and will be subject to the limitations, dependencies, and disclaimers set forth in this Agreement.  Social123 and Customer will cooperate to enable Social123 to provide the One-Time Deliverables according to the delivery terms set forth in each Order Form.  In addition, Customer will provide any Customer obligations specified in each Order Form.  In the event the One-Time Deliverables are not provided in accordance with the terms of the applicable Order Form, Customer will notify Social123 in writing no later than thirty (30) calendar days after provision of the One-Time Deliverables by Social123.  Customer’s notice will specify the basis for non-compliance with the Order Form and, if Social123 agrees with the basis for non-compliance, Social123 will, at Social123 sole option, either (I) provide a version of the One-Time Deliverables that is in compliance with the Order Form at no additional charge to Customer or (b) refund to Customer the applicable fees for the affected One-Time Deliverables.  THE FOREGOING CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND SOCIAL123’S SOLE AND EXCLUSIVE LIABILITY IN THE EVENT THE ONE-TIME DELIVERABLES ARE NOT PROVIDED IN COMPLIANCE WITH THE ORDER FORM.

 

5.              CUSTOMER RESPONSIBILITIES.

5.1.          Usage Restrictions.  Customer will not, and will not permit any Authorized End Users to, (i) copy or duplicate any portion of the Social123 Portal or the One-Time Deliverables; (ii) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of the Social123 Portal is compiled or interpreted, or apply any other process or procedure to derive the source code of any software included in the Social123 Portal, or attempt to do any of the foregoing, and Customer acknowledges that nothing in this Agreement will be construed to grant Customer any right to obtain or use such source code; (iii) modify, alter, tamper with or repair the Social123 Portal or any of the One-Time Deliverables, or create any derivative product from any of the foregoing, or attempt to do any of the foregoing, except with the prior written consent of Social123; (iv) interfere or attempt to interfere in any manner with the functionality or proper working of the Social123 Portal; (v) remove, obscure, or alter any notice of any intellectual property or proprietary right appearing on or contained within the Social123 Portal; or (vi) assign, sublicense, sell, resell, lease, rent or otherwise transfer or convey, or pledge as security or otherwise encumber, Customer’s rights under Section 3.1, 3.2 and 4 of these Terms and Conditions.  Customer will not use the Social123 Portal or the One-Time Deliverables except in compliance with Social123’s obligations to any third party with respect thereto incurred prior to the Subscription Term, including without limitation complying with those terms referenced in Section 3.6 above.  Customer will ensure that its use of the Social123 Portal and any of the One-Time Deliverables complies with all applicable laws, statutes, regulations or rules and will not use or compile any data from the Social123 Portal or the One-Time Deliverables for the purpose of any illegal activities.

5.2.          Access, Terms of Service and Privacy Policy.  Customer will provide reasonable cooperation, assistance, information and access to Social123 as may be necessary to initiate Customer’s use of the Social123 Portal.   Customer will be responsible for the acts or omissions of any person who accesses the Social123 Portal using passwords or access procedures provided to or created by Customer.  Social123 reserves the right to refuse registration of, or to cancel, login IDs that violate the terms and conditions set forth in the Agreement.  Customer acknowledges and agrees that, in addition to the terms herein, use of the Social123 Portal will be subject to our current Terms of Use (available at www.Social123.com/terms-use) and Privacy Policy (available at www.Social123.com/privacy).

5.3.          Customer Data.  As between the parties, Social123 retains all Customer Data (including personally identifiable information) provided by Authorized End Users (such as Authorized End Users’ names, addresses, account information) collected by Social123 through the Social123 Portal or collected by Social123 in connection with the One-Time Deliverables, and the parties acknowledge that all such Customer Data is being collected on behalf of and for the benefit of Customer, subject to Social123’s Privacy Policy available at www.Social123.com/Privacy.   Each party will ensure that all Customer Data in its possession is maintained, accessed and transmitted in a secure environment, and that its use, collection, storage, processing, sharing, disclosure, or other handling of Customer Data is in accordance with industry standard privacy and security practices and measures adequate to preserve its confidentiality and security as required by applicable privacy laws and regulations.

 

6.              PRICING AND PAYMENTS.

6.1.          Fees and Invoicing.  Customer will pay all fees for the right to use the Social123 Portal and for the purchase of One-Time Deliverables as set forth in the Order Form.  Unless otherwise provided in the applicable Order Form, all fees will be due on receipt of invoice issued by Social123. Payment obligations are non-cancelable and fees paid are non-refundable. You are responsible for providing complete, accurate billing and contact information and notifying Social123 of any changes to such information.

6.2.          Credit Card Payments. If You provide credit card information to Social123, You authorize Social123 to charge such credit card for all fees listed in the Order Form for the initial Subscription Term and any renewal subscription term(s) as set forth in the Order Form. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. Credit card payments may be subject to a limit at Social 123’s discretion.

6.3.          Automatic Renewal.  Customer understands and agrees that, depending on Customer’s choice of Subscription, Social123 will automatically renew Customer’s Subscription (each, an “Automatic Renewal”).  Unless otherwise agreed in a new Order Form, each Subscription’s Automatic Renewal will be for the same period of time as Customer’s original Subscription.  The pricing during any renewal term will increase by up to seven percent (7%) above the applicable pricing in the prior Subscription, unless Social123 provides You notice of different pricing at least sixty (60) days prior to the applicable renewal term.  Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at Social123’s applicable list price in effect at the time of the applicable renewal.  Notwithstanding anything to the contrary, any renewal in which subscription volume has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s pricing.  If Customer chooses not to renew the current Subscription, Customer must provide written notice thirty (30) days prior to the end of the then-current Subscription Term.

6.4.          No Refunds.  Any fees  paid pursuant to an Order Form will not be refunded, in whole or in part.  If Customer provides written notice of cancellation of Customer’s Subscription at least thirty (30) days prior to the end of the then-current Subscription Term, Customer will continue to enjoy Customer’s subscription benefits until the expiration of the then-current Subscription Term for which Customer has paid, and Customer’s Subscription will expire at the end of the then-current Subscription Term.

6.5.          Taxes. Customer will be responsible for payment of any applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges (other than taxes based on Social123’s income), and any related penalties and interest for the grant of license rights hereunder, or the delivery of related services.  Customer will make all required payments to Social123 free and clear of, and without reduction for, any withholding taxes.  Any such taxes imposed on payments to Social123 will be Customer’s sole responsibility, and Customer will, upon Social123’s request, provide Social123 with official receipts issued by the appropriate taxing authorities, or such other evidence as Social123 may reasonably request, to establish that such taxes have been paid.

6.6.          Late Payments; Interest.  Any portion of any amount payable hereunder that is not paid when due will accrue interest at one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid.

 

7.              CONFIDENTIALITY.

7.1.          Ownership of Confidential Information.  The parties acknowledge that during the performance of this Agreement, each party will have access to certain of the other party’s Confidential Information or Confidential Information of third parties that the disclosing party is required to maintain as confidential.  Both parties agree that all items of Confidential Information are proprietary to the disclosing party or such third party, as applicable, and will remain the sole property of the disclosing party or such third party.

7.2.          Mutual Confidentiality Obligations.  Each party agrees as follows: (i) to use Confidential Information disclosed by the other party only for the purposes described herein; (ii) that such party will not reproduce Confidential Information disclosed by the other party, and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (iii) that neither party will create any derivative work from Confidential Information disclosed to such party by the other party; (iv) to restrict access to the Confidential Information disclosed by the other party to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; and (v) to return or destroy, pursuant to Section 11, all Confidential Information disclosed by the other party that is in its possession upon termination or expiration of this Agreement.  Notwithstanding the foregoing, Customer agrees that Social123 may collect aggregated statistical data regarding Customer’s use of the Social123 Portal and provide such aggregated statistical data to third parties.  In no event will Social123 provide to third parties specific data regarding Customer or Customer’s Authorized End Users.

7.3.          Confidentiality Exceptions.  Notwithstanding the foregoing, the provisions of Sections 7.1 and 7.2 will not apply to Confidential Information that (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the recipient; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the recipient; or (vi) is approved for release or disclosure by the disclosing party without restriction.  Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order will first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (y) to establish a party’s rights under this Agreement, including to make such court filings as it may be required to do.

 

8.     PROPRIETARY RIGHTS.

8.1.          Social123 Ownership.  Except for the rights expressly granted by Social123 to Customer under this Agreement, as between the parties Social123 owns and retains all right, title and interest in and to the Social123 Portal, the Documentation, the One-Time Deliverables, the Aggregated Data and all of Social123’s content, including without limitation, information, text, graphics, links, documents, data, materials, tools, icons, audio, visual, software, symbols, and characters incorporated into and available through the Social123 Portal and the One-Time Deliverables, and all Intellectual Property Rights therein (collectively, the “Social123 IP”).  Except as otherwise set forth in these Terms and Conditions, nothing contained in this Agreement will be construed as conferring upon Customer, by implication, operation of law or otherwise, any other license or other right in or to the Social123 IP.  Customer will not take any action inconsistent with Social123’s ownership of the Social123 IP.

8.2.          Customer Ownership.  As between the parties, Customer owns and retains all right, title and interest in and to the Customer Data and all Intellectual Property Rights therein (collectively, the “Customer IP”).  Except as otherwise set forth in these Terms and Conditions, nothing will be construed as conferring upon Social123, by implication, operation of law or otherwise, any other license or other right in or to the Customer IP.  Social123 will not take any action inconsistent with Customer’s ownership of the Customer IP.

8.3.          Feedback.  If Customer sends or transmits any communications, comments, questions, suggestions, or related materials to Social123, whether by letter, e-mail, telephone, or otherwise (“Feedback”), suggesting or recommending changes to the Social123 Portal or the One-Time Deliverables, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be exclusively owned by Social123.  Customer hereby assigns all right, title, and interest in, and Social123 is free to use, without any attribution or compensation to Customer, any ideas, know-how, concepts, techniques, and all applicable intellectual property rights relating to the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback.  Customer agrees and understands that Social123 is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and Customer has no right to compel such use, display, reproduction, or distribution.

 

9.              WARRANTIES, DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY.

9.1.          Mutual Warranties.  Each party hereby represents and warrants (i) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization, (ii) that the Agreement constitutes a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms and (iii) that it will comply with any and all local, state and/or national laws, and/or regulations applicable to such party, including those related to data privacy and the transmission of personal data.

9.2.          Disclaimer.  EXCEPT AS EXPRESSLY REPRESENTED OR WARRANTED IN SECTION 9.1, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOCIAL123 PORTAL, THE ONE-TIME DELIVERABLES AND THE DOCUMENTATION ARE PROVIDED “AS IS” AND SOCIAL123, ITS LICENSORS AND SUPPLIERS DISCLAIM ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY.  SOCIAL123, ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS, DOES NOT WARRANT THAT THE SOCIAL123 PORTAL, THE ONE-TIME DELIVERABLES OR THE DOCUMENTATION WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE SOCIAL123 PORTAL WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.  THE PARTIES ACKNOWLEDGE AND AGREE THAT SOCIAL123 IS NOT OBLIGATED TO OBTAIN ANY REGULATORY APPROVALS THAT MAY BE NECESSARY UNDER THIS AGREEMENT.

9.3.          Exclusions of Remedies; Limitation of Liability.  EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, IN NO EVENT WILL SOCIAL123 OR ITS LICENSORS AND SUPPLIERS BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF SOCIAL123 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.  THE CUMULATIVE LIABILITY OF SOCIAL123 TO CUSTOMER FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO SOCIAL123 BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE ACT, OMISSION OR EVENT GIVING RISE TO SUCH LIABILITY.  THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.

9.4.          Essential Basis of the Agreement.  Customer acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in this Section 9 form an essential basis of the agreement between the parties, that the parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in this Agreement, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement would be substantially different.

 

10.            INDEMNIFICATION.

10.1.        Indemnification of Customer.  Social123 agrees to indemnify, defend and hold harmless Customer from and against any and all losses, liabilities, costs (including reasonable attorneys’ fees) or damages resulting from any claim by any third party that the Social123 Portal, the One-Time Deliverables and/or the Documentation infringes such third party’s patents or infringes or misappropriates, as applicable, such third party’s copyrights or trade secret rights under applicable laws of any jurisdiction, provided that Customer promptly notifies Social123 in writing of the claim, cooperates with Social123, and allows Social123 sole authority to control the defense and settlement of such claim.  If such a claim is made or appears possible, Customer agrees to permit Social123, at Social123’s sole discretion, to enable it to continue to use the Social123 Portal, the One-Time Deliverables or the Documentation, as applicable, or to modify or replace any such infringing material to make it non-infringing, or to obtain rights to continue use.  If Social123 determines that none of these alternatives is reasonably available, Customer will, upon written request from Social123, cease use of, and, if applicable, return, such materials as are the subject of the infringement claim.  This Section 10.1 will not apply to the extent that  the alleged infringement arises from (i) modification of the Social123 Portal, any of the One-Time Deliverables and/or the Documentation by Customer, (ii) combination, operation or use of the Social123 Portal, any of the One-Time Deliverables and/or the Documentation with other software, hardware or technology not provided by Social123, (iii) use of a superseded or altered release of the Social123 Portal, any of the One-Time Deliverables and/or the Documentation if such infringement would have been avoided by the use of a then-current release of the Social123 Portal, the One-Time Deliverables and/or the Documentation, as applicable, and if such then-current release has been made available to Customer, (iv) any Customer Data or (v) Third Party Data (any of the foregoing circumstances under clauses (i), (ii), (iii), (iv) or (v) a “Customer Indemnity Responsibility”).  IN NO EVENT SHALL SOCIAL123’S LIABILITY UNDER THIS SECTION 10 EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO SOCIAL123 BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE ACT, OMISSION OR EVENT GIVING RISE TO SUCH LIABILITY.  THIS SECTION STATES SOCIAL123’S ENTIRE OBLIGATION AND LIABILITY WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.

10.2.        Customer’s Indemnity Obligations.  Customer agrees to hold, harmless, indemnify, and, at Social123’s option, defend Social123 from and against any losses, liabilities, costs (including reasonable attorneys’ fees) or damages resulting from (i) Customer’s or any Authorized End User’s negligence or willful misconduct; (ii) Customer’s violation of any applicable law(s); (iii) Customer’s or any Authorized End User’s use of the Social123 Portal, the One-Time Deliverables and/or the Documentation in a manner not authorized or contemplated by this Agreement; or (iv) a Customer Indemnity Responsibility, provided that Customer will not settle any third-party claim against Social123 unless such settlement completely and forever releases Social123 from all liability with respect to such claim or unless Social123 consents to such settlement, and further provided that Social123 will have the right, at its option, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice.

 

11.            TERM AND TERMINATION.

11.1.        Term.  Unless otherwise specified in the applicable Order Form, each term set forth in a Subscription Term will (i) begin on the start date set forth on the applicable Order, (ii) remain in effect for a minimum period of twelve (12) months, and (iii) after the initial Subscription Term, automatically renew as set forth in Section 6.3 above.  Unless otherwise terminated pursuant to this Section 11, the term of these Terms and Conditions commences on the start date of the first Subscription Term of the first Subscription Order and continues until terminated as set forth in these Terms and Conditions.

11.2.        Termination.  This Agreement may be earlier terminated by either party (i) if the other party breaches a provision of this Agreement and fails to cure such breach within thirty (30) days (ten (10) days in the case of non-payment) after receiving written notice of such breach from the non-breaching party; or (ii) immediately 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.

11.3.        Effects of Termination.  Upon any expiration or termination of this Agreement:

(a) All rights and obligations of the parties will cease, except that all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) and all remedies for breach of this Agreement will survive;

(b) Customer will make no further use of the Social123 Portal or the Documentation, provided that no termination will relieve the Customer of the obligation to pay any fees accrued or payable to Social123;

(c) Customer will promptly pay to Social123 all amounts due and payable to the Social123 hereunder;

(d) all Order Forms hereunder shall terminate;

(e) Social123 has no obligation to retain Customer Data following thirty (30) days after complete termination of the Agreement; and

(f) Upon termination, each party will delete any of the other party’s Confidential Information still in their possession (with the exception of Customer Data as set forth in the preceding paragraph) from computer storage or any other media including, but not limited to, online and off-line libraries; and each party will return to the other party or, at the other party’s option, destroy, all physical copies of any the other party’s Confidential Information.

11.4.        Survival. The provisions titled Confidentiality, Proprietary Rights, Warranties, Disclaimers, Exclusions and Limitations on Liability, Indemnification, Effects of Termination and General Provisions will survive.

 

12.            GENERAL PROVISIONS.

12.1.        Entire Agreement.  This Agreement (which includes any Order Form completed by Customer, as well as those terms and documents incorporated by reference) constitute the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of this Agreement.  No oral statements or prior written material not specifically incorporated herein will be of any force and effect, and no changes in or additions to this Agreement will be recognized unless incorporated herein by amendment as provided herein and signed by duly authorized representatives of both parties. The application of Customer’s general terms and conditions in any general vendor acknowledgement or Customer’s other general purchasing conditions (including pre-printed boilerplate terms) are hereby expressly excluded, rejected, and objected to by Social123s. This Agreement will apply and supersede the pre-printed terms and conditions of any form submitted by either party, unless such form is expressly included herein.

12.2.        Waivers, Consents and Modifications.  No waiver, consent or modification of this Agreement will bind Social123 or Customer unless in writing and signed by the party against which enforcement is sought.  This Agreement may be modified solely upon the written agreement of both Customer and Social123.  The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights.

12.3.        Severability.  If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

12.4.        Governing Law.  This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflicts of law provisions.  Neither the United Nations Convention on Contracts for the International Sale of Goods nor any implementation of the Uniform Computer Information Transactions Act in any jurisdiction will apply to this Agreement.

12.5.        Force Majeure.  In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (except payment obligations) due to any cause beyond its reasonable control, the affected party will give written notice thereof to the other party and its performance will be extended for the period of delay or inability to perform due to such occurrence.

12.6.        Notices.  Any notice or communication hereunder will be in writing and either personally delivered or sent via confirmed facsimile, recognized express delivery courier or certified or registered mail, prepaid and return receipt requested, addressed to the other party, which, in the case of Customer, will be the address provided to Social123 in the Order Form upon signing up for the Service, and, in the case of Social123, will be the address set forth in the contact section of Social123’s website, or at such other address for either party as is designated in a subsequent notice.  All notices will be in English, effective upon receipt.

12.7.        Assignment.  This Agreement will be binding upon and for the benefit of Social123, Customer and their permitted successors and assigns.  Either party may assign this Agreement to its affiliates and as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets or business to which this Agreement relates.  Except as expressly stated in this Agreement, neither party may otherwise assign its rights or obligations under this Agreement either in whole or in part without the prior written consent of the other party, and any attempted assignment or delegation without such consent will be void.

12.8.        Independent Contractors.  The parties will be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint ventures or partners for any purpose.