Terms of Service
1. THE FOLLOWING TERMS AND CONDITIONS WILL BE LEGALLY BINDING ON CUSTOMER UPON EXECUTION OF THE SOCIALLY APPS LICENSE AGREEMENT. CUSTOMER SHOULD CAREFULLY READ THE FOLLOWING TERMS OF SERVICE BEFORE EXECUTING THE AGREEMENT.
2. Terms of Service. Customer acknowledges and agrees to the following terms of service, which together with the terms of the license agreement entered into between Customer and Socially Apps, shall govern Customer’s access and use of the Service (the “Agreement”). In addition, Customer agrees that unless explicitly stated otherwise, any new features that augment or enhance the Service, and/or any new service(s) subsequently purchased by the Customer will be subject to this Agreement.
2.1. Accuracy Of Customer’s Contact Information. Customer agrees to provide accurate, current and complete information on Customer’s legal business name, address, email address, and phone number, and maintain and promptly update this information if it should change.
2.2. Customer’s Lawful Conduct. Customer agrees to comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its use of the Service and shall obtain any permits or licenses required for such compliance. Except as permitted by this Agreement, no part of the Service may be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means. Customer agrees not to access the Service by any means other than through the interfaces that are provided by Socially Apps. Customer shall not license, rent, sell, lease, transfer, assign, distribute, display, host, outsource, disclose, or otherwise commercially exploit or make the Service available to any unauthorized user. Customer will not upload, post, reproduce or distribute any information, software or other material protected by copyright or any other intellectual property right (including but not limited to rights of publicity and privacy) without first obtaining the permission of the owner of such rights. Customer will not in any way express or imply that any opinions contained in Customer’s Electronic Communications are endorsed by Socially Apps. Neither Customer, nor someone acting on Customer’s behalf, will use the Service to target for solicitation any Socially Apps customers for purposes of providing any competitive product. Customer shall ensure that any use of the Service by Customer’s employees (or Customer’s other authorized users) is in accordance with the terms and conditions of this Agreement.
2.3. Transmission Of Data. Customer understands that the technical processing and transmission of Customer’s Electronic Communications is fundamentally necessary to Customer’s use of the Service. Customer expressly consents to Socially Apps’s interception and storage of Electronic Communications and/or Customer Data, and Customer acknowledges and understands that Customer’s Electronic Communications will involve transmission over the Internet, and over various networks, none or only part of which may be owned and/or operated by Socially Apps. Customer acknowledges and understands that changes to Customer’s Electronic Communications may occur in order to conform and adapt such data to the technical requirements of connecting networks or devices. Customer further acknowledges and understands that Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone, or other electronic means. Customer agrees that Socially Apps is not responsible for any Electronic Communications and/or Customer Data which are delayed, altered lost, intercepted or stored without authorization during the transmission of any data whatsoever across networks, including, but not limited to, the Internet.
2.4. Socially Apps’s Support. Socially Apps will make commercially reasonable efforts to promote Customer’s successful utilization of the Service. Socially Apps also offers customer support and professional services consultation. Customer acknowledges that not following the advice of Socially Apps in the provision of professional services may substantially limit Customer’s ability to successfully utilize the Service or to enjoy the power and potential of the Service.
2.5. Trademark Information. Customer agrees not to display or use any Socially Apps trademarks in any manner without Socially Apps’s express prior written permission.
2.6. Confidential Information. For purposes of this Agreement, confidential information shall include the terms of this Agreement, Customer Data, and any information that is clearly identified in writing at the time of disclosure as confidential (“Confidential Information”). Each party agrees: (a) to keep confidential all Confidential Information disclosed to it by the other party or by a third-party; (b) not to use the Confidential Information of the other party except to the extent necessary to perform its obligations or exercise rights under this Agreement; and (c) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information) and to make Confidential Information available to authorized persons only on a “need to know” basis. Either party may disclose Confidential Information on a need-to-know basis to its contractors who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of this Agreement. Confidential Information shall not include information which: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the recipient, subsequent to disclosure by the disclosing party; or (4) the recipient becomes aware of from a third party not bound by non-disclosure obligations to the disclosing party and with the lawful right to disclose such information to the recipient. Notwithstanding the foregoing, this policy will not prohibit the disclosure of Confidential Information to the extent that such disclosure is permitted by law or order of a court or other governmental authority or regulation. With respect to any information received by either party from the other as a result of any other relationship between the parties other than in the course of performance under this Agreement (i.e., business development, partnership, alliance, etc.), the parties will abide by the terms and conditions of any applicable Nondisclosure Agreement (or similar agreement) executed between the parties.
2.7 License From Customer. Customer understands and agrees that it is Socially Apps’s practice to make back up copies of the Customer Data. Customer acknowledges and agrees
that Socially Apps may store and maintain such data for up to one year (unless legally required to maintain such Customer Data longer). Subject to the terms and conditions of this Agreement, Customer grants Socially Apps a limited non-exclusive non-transferable (except to the extent necessary to perform its obligations or exercise rights under this Agreement) license to copy, store, record, transmit, maintain, display, view, print, or otherwise use Customer Data to the extent necessary to provide the Service to Customer. Customer agrees
that the license to store and maintain Customer Data shall survive the termination of this Agreement for approximately one year for the sole purpose of storing backup Customer Data. Subject to the terms of this Agreement, Socially Apps agrees that, as between Customer and Socially Apps, Customer Data shall at all times be considered the property of Customer.
3. Warranty Of Functionality. Socially Apps warrants to Customer during the Term that the Service will
achieve in all material respects the functionality applicable to the products purchased by Customer. Socially Apps does not warrant that the Service will be error-free. Customer’s sole
and exclusive remedy for Socially Apps’s breach of this warranty shall be that Socially Apps shall be required to use commercially reasonable efforts to modify the Service to achieve in all material respects the functionality applicable to the products and if Socially Apps is unable to restore such functionality, Customer shall be entitled to terminate the Agreement and shall be entitled to receive a pro-rata refund of the license fees paid for under the Agreement for its use of the Service for the terminated portion of the Term. Socially Apps shall have no obligation with respect to a warranty claim unless notified of such claim within fifteen (15) days of the first instance of any material functionality problem.
4. Disclaimer Of Warranties. EXCEPT AS STATED ABOVE, Socially Apps DOES NOT REPRESENT THAT CUSTOMER’S USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICE AND/OR DOCUMENTATION WILL BE CORRECTED OR THAT THE SYSTEM THAT MAKES THE SERVICE AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED IN SECTION 3 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY SOCIALLY APPS. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS STATED IN SECTION 3 ABOVE, THE SERVICE IS PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT
FOR CUSTOMER’S PURPOSES.
5. Limitations Of Liability. CUSTOMER AGREES THAT THE CONSIDERATION WHICH SOCIALLY APPS IS CHARGING HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY SOCIALLY APPS OF THE RISK OF CUSTOMER’S INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OR DISCLOSURE OF CUSTOMER DATA, LOST REVENUE, LOST PROFITS, OR LOSS OF OTHER ECONOMIC ADVANTAGE) ARISING FROM BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION TO THE MAXIMUM EXTENT PERMITTED BY LAW ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT. The maximum liability of either party to any person, firm or corporation whatsoever arising out of or in the connection with any license, use or other employment of the Service, whether such liability arises from any claim based on breach or repudiation of contract, breach of warranty, negligence, tort, or otherwise, shall in no case exceed the equivalent of 1 month in license fees applicable at the time of the event. The essential purpose of this provision is to limit the potential liability of the parties arising from this Agreement. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitations of liability for incidental or consequential damages, so the exclusions set forth above may not apply to Customer. THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO EITHER PARTY’S INDEMNITY OBLIGATIONS SET FORTH IN SECTION 6 BELOW.
6.1. Customer’s Indemnity. Customer shall indemnify, defend, and hold Socially Apps harmless from and against any and all Losses arising out of or in connection with a claim, suit, action, or proceeding brought by any third party against Socially Apps which arise out of or result from a claim by a third-party (i) alleging that the Customer Data or any trademarks or service marks other than Socially Apps trademarks, or any use thereof, infringes the intellectual property rights or other rights, or has caused harm to a third party, or (ii) arising out of Customer’s breach of Section 2.2 and 2.6 above.
6.2. Survival. The indemnification obligations contained in this Section 6 shall survive termination of this Agreement for one year.
7.1. Suspension For Delinquent Account. Socially Apps reserves the right to suspend Customer’s access to and/or use of the Service (and that of any other customer of Socially Apps that controls, is controlled by, or is under common control with Customer) (a “Customer Affiliate”)) for any accounts for which any payment is due but unpaid but only after Socially Apps has provided Customer a delinquency notice, and at least fifteen (15) days have passed since the transmission of the notice (“Delinquent Account Status”). Socially Apps also reserves the right to suspend Customer’s access and/or use of the Service in the event that any Customer Affiliate account is in Delinquent Account Status. Customer agrees that Socially Apps shall not be liable to Customer or to any Customer Affiliate or other third party for any suspension of the Service resulting from Customer’s nonpayment of fees as described in this Section.
7.2. Suspension For Ongoing Harm. Customer agrees that Socially Apps may without notice suspend Customer’s access to the Service if Socially Apps reasonably
concludes that Customer is using the Service to engage in illegal activity, and/or Customer’s use of the Service is causing immediate, material and ongoing harm to Socially Apps or others. In the extraordinary event that Socially Apps suspends Customer’s access to the Service, Socially Apps will use commercially reasonable efforts to resolve the issues causing the suspension of Service. Customer agrees that Socially Apps shall not be liable to Customer nor to any third party for any suspension of the Service under such circumstances as described in this Section.
7.3. In The Event of Breach. Either party may terminate this Agreement for any reason upon formal written notice to the other party. Such notice by the complaining party shall expressly state all of the reasons for the termination. Upon termination or expiration of this Agreement, Customer shall have no rights to continue use of the Service. If this Agreement is terminated by Customer, Customer agrees that Socially Apps shall be entitled to all of the fees due under this Agreement for the entire Term. If this Agreement is terminated by Socially Apps, Socially Apps shall refund the pro rata portion of any fee paid by Customer for the terminated portion of the Term.
7.4. Handling Of Customer Data In The Event Of Termination. Customer agrees that following termination of Customer’s account and/or use of the Service, Socially Apps may immediately deactivate Customer’s account and that following a reasonable period of not less than 30 days shall be able to delete Customer’s account and related Customer Data. However, in the event that Customer’s Service with Socially Apps terminates, Socially Apps will grant Customer temporary, limited access to the Service for the sole purpose of permitting Customer to retrieve lawful Customer Data, provided that Customer has paid in full all good faith undisputed amounts owed to Socially Apps. Customer further agrees that Socially Apps shall not be liable to Customer nor to any third party for any termination of Customer access to the Service or deletion of Customer Data, provided that Socially Apps is in compliance with the terms of this Section.
8.1. Customer agrees that Socially Apps can disclose the Customer's use of the Service. During the term of this Agreement, Customer grants Socially Apps the right to reference Customer's name and logo, on the customer section of Socially Apps’s web site.
9. Modification To Or Discontinuation Of The Service. Socially Apps reserves the right at any time and from time to time to modify, temporarily or permanently, the Service (or any part thereof). In the event that Socially Apps modifies the Service in a manner which removes or disables a feature or functionality on which Customer materially relies, Socially Apps, at Customer’s request, shall use commercially reasonable efforts to substantially restore such functionality to Customer. In the event that Socially Apps is unable to substantially restore such functionality (unless enjoined from doing so by a court of competent jurisdiction), Customer shall have the right to terminate the Agreement and receive a pro-rata refund of the license fees paid under the Agreement for the terminated portion of the Term. Customer acknowledges that Socially Apps reserves the right to discontinue offering the Service at the conclusion of Customer’s then current Term. Customer agrees that Socially Apps shall not be liable to Customer nor to any third party for any modification of the Service as described in this Section.
10. Modification To The Terms Of Service. These Terms of Service may be changed, modified, amended or otherwise altered by Socially Apps in its discretion at any time without any notice. The most recent version of these terms and conditions on Socially Apps site, with the date of last modification noted above. Such modifications shall become effective immediately upon the posting thereof. If Customer does not agree to the revised terms and conditions, Customer 's sole recourse is to immediately stop all use of the Services. Continued use of the Services following the posting of modifications will constitute acceptance of the revised terms and conditions.
Exclusion of Free and Beta Accounts
Socially Apps Free and Beta accounts and test environments are expressly excluded from this service level commitment.