Vitrue Platform Master Subscription Agreement
PLEASE READ THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) CAREFULLY, AS THESE TERMS AND CONDITIONS MAY HAVE CHANGED SINCE YOUR LAST VISIT. BY ACCEPTING THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER 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” SHALL REFER TO SUCH ENTITY.
Vitrue, Inc. provides businesses and organizations with services consisting of (i) tools and resources to manage social media marketing programs, (ii) tools and resources to create, launch, and manage Facebook and Twitter pages, communications, and applications, including the Vitrue Social Relationship Management Platform and its components, and (iii) related offerings, including reporting, premium image hosting services, and associated offline components (collectively, the “Vitrue Platform”). That portion of the Vitrue Platform that You have agreed to purchase and Vitrue has agreed to provide to You in accordance with this Agreement are referred to as the “Services.”
The following are the terms and conditions of Use for access to this web site and use of the Services. By clicking the I accept button on the registration page, by logging in to the Vitrue Platform or by accessing the Services via any API interface, You accept the terms and conditions of this Agreement.
This Agreement is effective between You and Us as of the date You accept this Agreement
“Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Order Form” means the ordering documents for purchases hereunder, including addenda thereto, that are entered into from time to time either between You and Us or between Us and a Reseller on Your behalf. Order Forms are incorporated herein by reference.
“Reseller” means a reseller, distributor, or similar entity that contracts with Vitrue to resell the Services. Under certain circumstances, the selection of the type of Services You have contracted to receive and payments for such Services are governed by Your agreement with the Reseller.
“Reseller Agreement” means the agreement between You and a Reseller for the provision of and/or payment for the Services.
“Users” means individuals who are authorized by You to use the Services, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to Your employees, consultants, contractors and agents; or third parties with which You transact business.
“We,” “Us” or “Our” means Vitrue, Inc.
“You” or “Your” means (i) the company or other legal entity on whose behalf the individual person who accepts this Agreement is acting or (ii) if the individual person accepting this Agreement is not authorized to enter into this Agreement on behalf of a company or other legal entity, the individual person who accepts this Agreement.
“Your Data” means all electronic data, information, or other content submitted by or on behalf of You to the Services or by third parties with whom you interact through the Services.
2.1. Provision of Services. We shall make the Services available to You pursuant to this Agreement and the relevant Order Forms during a subscription term. You agree that Your purchases hereunder are not contingent on the delivery of any future functionality or features.
2.2. Competitors. Notwithstanding the foregoing, You may not access the Services if You are Our direct competitor, except with Our prior written consent.
3. Use of the Services.
3.1. Our Responsibilities. We shall use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give at least 8 hours notice via the Vitrue Platform), or (ii) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, or Internet service provider failures or delays. We shall provide to You basic support for the Services at no additional charge, and/or upgraded support if purchased separately.
3.2. Your Responsibilities. You shall (i) be responsible for Your compliance with this Agreement, (ii) be solely responsible for the quality, integrity and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with applicable laws and government regulations. You shall not (a) make the Vitrue Platform available to anyone other than employees or agents of Your company, or a partner working on behalf of Your company, (b) sell, resell, rent or lease the Services to others, (c) use the Vitrue Platform to store or transmit infringing or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Vitrue Platform to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Vitrue Platform or data contained therein, or (f) attempt to gain unauthorized access to the Vitrue Platform or its related systems or networks.
3.3 Amendments to this Agreement. We reserve the right, at Our sole discretion, to update or revise this Agreement, upon notice of such modification on the Vitrue Platform. The updated or revised Agreement shall become effective at the end of your then subscription term, without renewals. If you do not agree to the updated or revised terms, then you may simply elect not to renew the subscription term of this Agreement. If the Services are provided on a month-to-month basis, the updated or revised Agreement shall take effect on the first day of the month after the updated or revised Agreement is posted on the Vitrue Platform. This Agreement was last updated on October 12, 2010.
4. Fees and Payments
4.1. Fees. You shall pay or cause to be paid all fees specified in all Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are quoted and payable in United States dollars, (ii) fees are based on Services purchased and not actual usage, and (iii) payment obligations are non-cancelable and fees paid are nonrefundable. Except as otherwise stated on the applicable Order Form, fees are payable monthly in advance on a calendar monthly basis. Fees for less than a full month during the subscription term shall be pro rated on a daily basis.
4.2. Invoicing and Payment. For Services purchased directly from Us, You will provide Us with valid credit card information, or purchase order, or alternative document reasonably acceptable to Us. If You provide us with credit card information, You authorize Us to charge Your credit card for Services and You agree to keep Your credit card information up to date. For Services purchased directly from Us, if You are not using a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for maintaining complete and accurate billing and contact information in the Services.
4.3. Overdue Charges. If any charges are not received from You or on Your behalf by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 4.2 (Invoicing and Payment).
4.4. Suspension of Service and Acceleration. If any amount owed to Us by or on behalf of You under this Agreement or any other agreement for Our services is 30 or more days overdue, We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services to You until such amounts are paid in full.
4.5. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority.
5. Proprietary Rights
5.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Vitrue Platform, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
5.2. Restrictions. You shall not (i) permit any third party to access the Vitrue Platform except as permitted herein or in an Order Form, (ii) create derivative works based on the Vitrue Platform, (iii) copy, frame or mirror any part or content of the Vitrue Platform, (iv) reverse engineer the Vitrue Platform, or (v) access the Vitrue Platform in order to (a) build a competitive product or service, or (b) reproduce any features, functions or graphics of the Vitrue Platform.
5.3. Ownership of Your Data. As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data. We reserve the right to use aggregated data across all clients collected by the Vitrue Platform services for reporting purposes.
5.4. Suggestions. You grant to us a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Vitrue Platform any suggestions, enhancement requests, recommendations or other feedback provided by You, previously provided or as provided in the future, including Users, relating to the operation or functionality of the Vitrue Platform.
6.1. Confidential Information. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Vitrue Platform; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
6.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
6.3. Protection of Your Data. Without limiting the above, We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not (a) disclose Your Data except as compelled by law in accordance with Section 6.4 (Compelled Disclosure) or as expressly permitted in writing by You, or (b) access Your Data except to provide the Services or prevent or address service or technical problems, or at Your request in connection with customer support matters.
6.4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
7. WARRANTIES AND DISCLAIMERS
7.1. Our Warranties. USE OF THE SERVICES AND ANY RELIANCE BY YOU UPON THE SERVICES, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. VITRUE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED “AS IS” AND VITRUE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. Some states do not allow for the exclusion of certain implied warranties, so portions of this Section may not be applicable to You.
Your sole and exclusive remedy for any failure or nonperformance of the Services shall be for Vitrue to use commercially reasonable efforts to adjust or repair the Services.
7.2. Mutual Warranties. Each party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not transmit to the other party any Malicious Code (except for Malicious Code previously transmitted to the warranting party by the other party).
8.1. Indemnification by Us. We shall defend You against any claim, demand, suit, or proceeding (“Claim”) made or brought against You by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify You or any damages finally awarded against You (including costs and attorneys’ fees) in connection with any such Claim; provided, that You (a) promptly give Us written notice of the Claim; (b) give Us sole control of the defense and settlement of the Claim (provided that We may not settle any Claim unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense.
8.2. Indemnification by You. You shall defend Us against any Claim made or brought against Us by a third party alleging that Your Data, Your use of the Services in violation of this Agreement, or Your use of the Services with other services, technology, information, methods, or processes not provided by Us, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify Us for any damages finally awarded against Us (including costs and attorneys’ fees) in connection with any such Claim; provided, that We (a) promptly give You written notice of the Claim; (b) give You sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally release Us of all liability); and (c) provide to You all reasonable assistance, at Our expense.
8.3. Exclusive Remedy. This Section 8 (Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section.
9. LIMITATION OF LIABILITY
9.1. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF $500,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 4 (FEES AND PAYMENT FOR SERVICES). Some states do not allow for the limitation of certain damages, so portions of this Section may not be applicable to You.
9.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
9.3. Exceptions. The limitations set forth in Sections 9.1 and 9.2 are not applicable to breaches of Section 6 (Confidentiality), any unauthorized access to the Vitrue Platform, and Section 3.2 (Your Responsibilities).
10. TERM AND TERMINATION
10.1. Term of Agreement. This Agreement commences on the date You accept it and continues until all subscriptions granted in accordance with this Agreement have expired or been terminated.
10.2. Term of Purchased Subscriptions. Subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all subscriptions shall 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 30 days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless We have given You written notice of a pricing increase at least 30 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.
10.3. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days advance written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
10.4. Refund or Payment upon Termination. Upon any termination for Our breach, We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause for Your breach, You shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.
10.5. Return of Your Data. Upon request by You made within 30 days after the effective date of termination of a Services subscription, We will make available to You for download a file of Your Data in comma separated value (.csv) format. After such 30-day period, We shall have no obligation to maintain or provide any of Your Data and may, without further notice to you, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.
10.6. Surviving Provisions. Sections 1 (Definitions), 4 (Fees and Payments), 5 (Proprietary Rights), 6 (Confidentiality), 7 (Warranties and Disclaimers), 8 (Indemnification), 9 (Limitation of Liability), 10.4 (Refund or Payment upon Termination), 10.5 (Return of Your Data), 10.6 (Surviving Provisions), 11 (Notices, Governing Law and Jurisdiction) and 12 (General Provisions) shall survive any termination or expiration of this Agreement.
11. NOTICES, GOVERNING LAW AND JURISDICTION
11.1. Governing Law. This Agreement shall be governed by the law of the state of Georgia and the United States, without regard to its choice of law rules. Except for actions for equitable relief, you consent to the exclusive jurisdiction and venue of the state and federal courts located in Atlanta, Georgia for all disputes hereunder.
11.2. Notices. You should direct notices to Us to: Vitrue, Inc. Legal Department 101 Marietta Street Suite 1700 Atlanta, GA 30303 FAX: +1-404-478-8325. Notices to You shall be addressed to the system administrator designated by You for Your relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by You. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). The notice address may be changed by providing notice to the other party.
11.3. Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
12. GENERAL PROVISIONS
12.1. Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) You shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition or restriction.
12.2. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
12.3. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
12.4. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
12.5. Attorney Fees. You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 4 (Fees and Payments).
12.6. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing and unless prohibited under a Reseller Agreement, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, We shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.7. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as set forth in Section 3.3, no modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.