Please read the master subscription agreement and all referenced or linked materials carefully before using the BuzzBoard subscription service.
This Master Subscription Agreement (this “Agreement”) is made, by and between BuzzBoard, Inc. and YOU (“Company”). In consideration of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
For the purposes of this Agreement, including the exhibits, the following terms will have the following meanings:
- 1.1“Company Materials” means all materials including, but not limited to, all text, pictures, graphics, icons and buttons provided by Company to BuzzBoard for personalizing BuzzBoard subscription service.
- 1.2“Intellectual Property Rights” means any and all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing.
- 1.3“Third Party Tools” means any third party development and authoring tools, content, modules, API or materials that BuzzBoard licenses from third parties and makes available for use in connection with the Services.
- 1.4“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “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.
- 1.5“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
- 1.6“Non-BuzzBoard Applications” means online applications and offline software products that are provided by entities or individuals other than Us and are clearly identified as such, and that interoperate with the Services.
- 1.7“Order Form” means the documents for placing orders hereunder, including addenda thereto, that are entered into between You and Us or any of Our Affiliates from time to time, including addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Order Forms shall be deemed incorporated herein by reference.
- 1.8“Purchased Services” means Services that You or Your Affiliates purchase under an Order Form, as distinguished from those provided pursuant to a trial.
- 1.9“Services” means the products and services that are ordered by You under a trial or an Order Form and made available by Us online via the customer login link at http://www.buzzboard.com and/or other web pages designated by Us, including associated offline components and/or applications that run over mobile devices or tablets like iPad. “Services” exclude Non-BuzzBoard Applications.
- 1.10“User Guide” means the online user guide for the Services, accessible via login at http://www.buzzboard.com and/or other web pages designated by us, as updated from time to time.
- 1.11“Users” means individuals who are authorized by You to use the Services, for whom subscriptions to a Service have been ordered, 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, and third parties with which You transact business.
- 1.12“We,” “Us” or “Our” means the BuzzBoard, Inc.
- 1.13“You” or “Your” or “Company” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
- 1.14“Your Data” and or “Users Data” means all electronic data or information submitted by You to the Services.
If You register for a trial, We will make one or more Services available to You on a trial basis until the earlier of (a) the end of the trial period for which you registered or are registering to use the applicable Service or (b) the start date of any Purchased Services ordered by You. Additional trial terms and conditions may appear on the Order Form. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. YOU CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL.THEREFORE, IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST.
NOTWITHSTANDING SECTION WARRANTIES AND DISCLAIMERS, DURING THE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
During the term of this Agreement, the parties will periodically enter into one or more statements of orders (each an “Order Form”). The first ORDER FORM forms part of the initial order. The ORDER FORMs will incorporate the terms of this Agreement. To the extent that a conflict arises between the terms of an ORDER FORM and the terms of this Agreement, the terms of this Agreement will govern. Each ORDER FORM will include (but, not be limited to): (i) a description of each Service; (ii) the schedule for the provision of each Service; (iii) the Users and the number of Users; and (iv) the term of the performance of each Service;
3.1Provision of Purchased Services.
We shall make the Purchased Services available to You pursuant to this Agreement and the relevant Order Forms during a subscription term. You agree that Your 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 Us regarding future functionality or features.
Unless otherwise specified in the applicable Order Form, (i) Services are purchased as User subscriptions and may be accessed by no more than the specified number of Users, (ii) additional User subscriptions may be added during the applicable subscription term at the same pricing as that for the pre-existing subscriptions thereunder, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and (iii) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated Users only and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services.
Use of the Services
We shall: (i) provide Our basic support for the Purchased Services to You at no additional charge, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We shall give at least 8 hours notice via the Purchased Services and which We shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Friday to 3:00 a.m. Monday Pacific Time), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), Internet service provider failures or delays, or denial of service attacks, and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations.
- 4.2Our Protection of Your Data
We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not (a) modify Your Data, (b) disclose Your Data except as compelled by law in accordance with Section 7.1 or as expressly permitted in writing by You, or (c) access Your Data except to provide the Services and prevent or address service or technical problems, or at Your request in connection with customer support matters.
- 4.3Your Responsibilities
You shall (i) be responsible for Users’ compliance with this Agreement, (ii) be responsible for the accuracy, quality 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 the User Guide and applicable laws and government regulations. You shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.
- 4.4Usage Limitations
Services may be subject to other limitations, such as, for example, limits on disk storage space, on the number of calls You are permitted to make against Our application programming interface, and, for Services that enable You to provide public websites, on the number of page views by visitors to those websites. Any such limitations are specified in the User Guide. The Services provide real-time information to enable You to monitor Your compliance with such limitations.
You must keep Your password and user name for the Services confidential. You must not allow any third party access or use its user name, password or account for the Services. You are solely responsible and liable for all activity conducted through Your account in connection with the Services. If You become aware of or reasonably suspect any security breach, including any loss, theft or unauthorized disclosure or use of Your password or account, You must immediately report the actual or suspected security breach to Us.
Grants and Ownership
- 5.1Grants and Restrictions
- (a)BuzzBoard, subject to the terms and conditions of this Agreement, grants to Company a non-exclusive, revocable and worldwide license to use such Service in accordance with the terms of the ORDER FORM applicable to such Service.
- (b)Subject to the terms and conditions of this Agreement, Company grants to BuzzBoard a non-exclusive, worldwide and royalty-free license to copy, reproduce, modify and create derivative works of the Company Materials in order to customize a Service in accordance with the terms of the ORDER FORM applicable to such Service.
Subject to the terms and conditions of this Agreement, each party (“Licensor”) grants to the other party (“Licensee”) a non-exclusive, limited license to use the trade names, trademarks, service marks, symbols and logos (collectively, “Marks”) of Licensor solely to fulfill its obligations under this Agreement. Licensee’s use of Licensor’s Marks must be pre-approved, in writing, by Licensor. Except as set forth in this Section, nothing in this Agreement will grant to Licensee any right, title or interest in or to Licensor’s Marks and all use of Licensor’s Marks will inure solely to the benefit of Licensor. Licensee will not adopt, use or register any words, phrases or symbols which are identical to or confusingly similar to any of Licensor’s Marks. At no time during or after the term of this Agreement will Licensee challenge or assist others to challenge Licensor’s Marks or the registration thereof or attempt to register any Marks confusingly similar to Licensor’s Marks. Licensee will promptly notify Licensor of: (i) any use by any third party of Licensor’s Marks; or (ii) any use by any third party of similar Marks which may constitute an infringement or “passing off” of Licensor’s Marks. Licensor reserves the right, in its sole discretion, to institute any proceedings against such third party infringers and Licensee will refrain from doing so. Licensee agrees to cooperate fully with Licensor in any action taken by Licensor against such third parties; provided, however, that all expenses of such action will be borne by Licensor and all damages which may be awarded or agreed upon in settlement of such action will accrue to Licensor.
You shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivate works based on the Services except as authorized herein, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, or decompile, reverse engineer or reverse assemble any portion of the Software or attempt to discover any source code or underlying ideas or algorithms of the Software; (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services. (vi) sell, assign, sublicense, rent, lease, loan, provide, distribute or otherwise transfer all or any portion of the Services; (vii) remove or alter any trademark or logo, copyright or other proprietary notices associated with the Services; or (viii) cause or authorize any other party to do any of the foregoing.
We shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.
- 5.5Ownership and Reservation of Rights.
- (a)You will own all right, title and interest in and to Company’s Marks, Company Materials and the Users Data and any and all Intellectual Property Rights embodied therein.
- (b)BuzzBoard will own all right, title and interest in and to BuzzBoard’s Marks and the Services (including, but not limited to, the Software and any hardware related to the Services) and any and all Intellectual Property Rights embodied therein.
- (c)Each party reserves all rights not expressly granted in this Agreement, and no licenses are granted by a party to the other party under this Agreement, whether by implication, estoppel or otherwise, except as expressly set forth in this Agreement.
- (d)All rights not expressly granted in this agreement are reserved by Us. For clarity, nothing in this agreement will be construed as granting You any ownership, security, right in any intellectual property, or other rights in or relating to any or all of the Services.
You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are based on services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. User subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for User subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term.
- 6.2Invoicing and Payment.
You will provide Us with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Services 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. If the Order Form specifies that payment will be by a method other than 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 on receipt. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
- 6.3Overdue Charges.
If any charges are not received from You 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 6.2 (Invoicing and Payment).
- 6.4Suspension of Service and Acceleration.
If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), 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 Our services to You until such amounts are paid in full. We will give You at least 7 days’ prior notice that Your account is overdue, in accordance with Section 12.6 (Notices), before suspending services to You. In case of services being suspended due to non payment of dues and subsequently needs to be reactivated a reactivation fee may be charged.
- 6.5Payment Disputes.
We shall not exercise Our rights under Section 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
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. For clarity, We are solely responsible for taxes assessable against it based on Our income, property and employees.
Confidentiality and Publicity.
“Confidential Information” means all information disclosed (whether in oral, written, or other tangible or intangible form) by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) concerning or related to this Agreement or the Disclosing Party (whether before, on or after the Effective Date) which the Receiving Party knows or should know, given the facts and circumstances surrounding the disclosure of the information by the Disclosing Party, is confidential information of the Disclosing Party. Confidential Information includes, but is not limited to, the Services, the components of the business plans, financial plans, know-how, customer information, strategies and other similar information. The Receiving Party will, during the term of this Agreement and thereafter, maintain in confidence the Confidential Information of the Disclosing Party and will not use such Confidential Information except as expressly permitted herein. The Receiving Party will use the same degree of care in protecting the Disclosing Party’s Confidential Information as the Receiving Party uses to protect its own Confidential Information from unauthorized use or disclosure, but in no event less than reasonable care. Any Confidential Information of the Disclosing Party will be used by the Receiving Party solely for the purpose of carrying out the Receiving Party’s obligations under this Agreement. In addition, the Receiving Party: (i) will not reproduce Confidential Information disclosed by the Disclosing Party, in any form, except as required to accomplish the Receiving Party’s obligations under this Agreement; and (ii) will only disclose Confidential Information disclosed by the Disclosing Party to its directors, officers, employees and/or contractors who have a need to know such Confidential Information in order to perform their duties under this Agreement and if such directors, officers, employees and/or contractors have executed a non-disclosure agreement with the Receiving Party with terms no less restrictive than the non-disclosure obligations contained in this Section. Notwithstanding the foregoing, Confidential Information will not include any information that (a) was publicly known before the Disclosing Party’s disclosure of the information, or becomes publicly known, through no violation of the terms of this Agreement, after the Disclosing Party’s disclosure of the information; (b) the Receiving Party can demonstrate, through its files and written records, was already known by or in the possession of the Receiving Party at the time of disclosure; (c) the Receiving Party obtains from a third party without a breach of such third party’s obligations of confidentiality; (d) the Receiving Party can demonstrate, through documents and other competent evidence in its possession, was independently developed by the Receiving Party in the course of work by its employees who neither used nor had access to Confidential Information of the Disclosing Party; or (e) the Receiving Party is required to disclose by law or by a subpoena or order issued by a court of competent jurisdiction (each, an “Order”), provided that the Receiving Party gives the Disclosing Party written notice of the Order within 24 hours after receiving it and cooperates fully with the Disclosing Party prior to disclosure to provide the Disclosing Party with the opportunity to interpose any and all objections it may have to disclosure of the information required by the Order and seek a protective order or other appropriate relief. In the event of any dispute between the parties as to whether specific information is within one or more of the exceptions set forth in this Section, the Receiving Party will bear the burden of proof, by clear and convincing evidence, that such information is within the claimed exception(s). Notwithstanding any terms to the contrary in this Agreement, any suggestions, comments or other feedback provided by Company, and/or any Users to BuzzBoard with respect to BuzzBoard and/or the Services (collectively, “Feedback”) will constitute Confidential Information of BuzzBoard. Further, BuzzBoard will be free to use, disclose, reproduce, license, distribute and otherwise exploit the Feedback provided to BuzzBoard as it sees fit, entirely without obligation or restriction of any kind on account of Intellectual Property Rights or otherwise.
Unless expressly otherwise set forth in an ORDER FORM, Company consents to BuzzBoard’s use of Company’s name and logo on any websites owned or operated by BuzzBoard and publicly-available printed materials, identifying Company as a customer of BuzzBoard and describing Company’s use of the Services.
Representations and Warranties; Disclaimer.
- 8.1General Representations and Warranties.
Each party represents and warrants that: (i) it is validly existing and in good standing under the laws of the place of its establishment or incorporation; (ii) it has full corporate power and authority to execute, deliver and perform its obligations under this Agreement; (iii) the person signing this Agreement on its behalf has been duly authorized and empowered to enter into this Agreement; (iv) this Agreement is valid, binding and enforceable against it in accordance with its terms; and (v) neither the execution of this Agreement nor the performance of its obligations under the Agreement, will conflict with, or result in a breach of, or constitute a default under, any provision of the articles of incorporation, business license, by-laws or articles of association (or other such charter documents) of such party, or any applicable law or any contract or agreement to which it is a party or is subject. Further, Company represents and warrants that: (a) it will comply with all applicable laws, rules, and regulations in its management, marketing, promotion and exploitation of the Services; (b) it will comply with all applicable laws, rules, and regulations with respect to the collection, use and disclosure of the Users Data (including, but not limited to, all applicable laws, rules and regulations that relate to the collection and use of personally identifiable information and privacy matters); (c) it will not make any representations or warranties on BuzzBoard’s behalf; (d) it will not provide an indemnity (or related terms) on BuzzBoard’s behalf; (e) it will not use deceptive, misleading, illegal or unethical practices in fulfilling its obligations under this Agreement; and (f) it will comply with all requirements relating to the Services imposed upon BuzzBoard by third party service providers.
EXPECT FOR THE WARRANTIES SET FORTH IN SECTION 7.1, EACH PARTY AND ITS SUPPLIERS DISCLAIM ANY AND ALL OTHER WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THIS AGREEMENT, THE SERVICES AND THIRD PARTY TOOLS, WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL: (I) WARRANTIES OF MERCHANTABILITY; (II) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT SUCH PARTY KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE); AND (III) WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE. THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF THE EXPRESS WARRANTY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE.
- 9.1BuzzBoard Indemnification Obligations.
BuzzBoard, at its sole expense, will defend, indemnify and hold Company harmless from and against any and all actual or threatened suits, actions, proceedings, claims, damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorney fees) resulting from any claim, suit, action or proceeding (“Claim”) against Company as a result of: (i) the use of the Services (in the form delivered to Company by BuzzBoard) or BuzzBoard’s Marks misappropriating or infringing any Intellectual Property Rights of any third-party; (ii) any breach or alleged breach of any of BuzzBoard’s representations or warranties; or (iii) any negligent act or willful misconduct by BuzzBoard or any party acting on BuzzBoard’s behalf. In the event of a Claim pursuant to this Section, BuzzBoard may, at BuzzBoard’s option and at BuzzBoard’s expense: (a) obtain for Company the right to continue to exercise the license granted to Company under this Agreement; (b) substitute an equivalent non-infringing service; (c) modify the Service to make it non-infringing; or (d) terminate this Agreement. BuzzBoard’s indemnification obligations do not extend to Claims arising from or relating to: (x) any use of the Services in combination with any equipment, software, data or any other materials where the infringement would not have occurred but for such combination; (y) any modification to the Services where the infringement would not have occurred but for such modification; (z) the use of the Services by Company (or any third party) in a manner contrary to the terms of this Agreement where the infringement would not have occurred but for such use; or (xx) the continued use of the Service after BuzzBoard has provided A substantially equivalent non-infringing service.
- 9.2Company Indemnification Obligations.
Company, at its sole expense, will defend, indemnify and hold BuzzBoard harmless from and against any and all actual or threatened suits, actions, proceedings, claims, damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorney fees) resulting from any Claim against Company as a result of: (i) the Company Materials or Company’s Marks misappropriating or infringing any Intellectual Property Rights of any third-party; (ii) any breach or alleged breach of any of Company’s representations or warranties; or (iii) any negligent act or willful misconduct by Company or any party acting on Company’s behalf.
The indemnifying party’s indemnification obligations under this Section 8 are conditioned upon the indemnified party: (i) giving prompt notice of the Claim to the indemnifying party once the indemnified party becomes aware of the Claim; (ii) granting sole control of the defense and settlement of the Claim to the indemnifying party (except that the indemnified party’s prior written approval will be required for any settlement that reasonably can be expected to require an affirmative obligation of or result in any ongoing liability to the indemnified party, including the payment of monies); and (iii) providing reasonable cooperation to the indemnifying party and, at the indemnifying party’s request and expense, assistance in the defense or settlement of the Claim.
Limitation of Liability.
EXCEPT FOR ANY ACTS OF FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT, BREACHES OF SECTIONS 5 OR 6.1 OR EACH PARTY’S INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL: (I) EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, ANY INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) EITHER PARTY’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT OF FEES PAID BY COMPANY TO BUZZBOARD UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACCRUAL OF THE FIRST CLAIM.
Term and Termination; Effect of Termination.
- 11.1Term and Termination.
Unless terminated as set forth in this Agreement, the term of this Agreement will be for the longest period set forth in the ORDER FORMs. The Agreement will renew automatically for a further period of 12 month at the end of each term if not terminated with 30 days notice. Either party may terminate this Agreement for cause: (i) if the other party breaches this Agreement and does not remedy such failure within 30 days after its receipt of written notice of such breach (notwithstanding the foregoing, the cure period for Company’s failure to pay any Service Fees will be 10 days after its receipt of written notice of such breach); or (ii) if the other party terminates its business activities or becomes insolvent, admits in writing to inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority.
- 11.2Effect of Termination.
Upon any expiration or termination of this Agreement: (i) all rights and licenses granted to a party by the other party will immediately cease (unless expressly otherwise set forth in an ORDER FORM); and (ii) each party will promptly provide to the other party all Confidential Information of such other party then in its possession or destroy all copies of Confidential Information of such other party, at such other party’s sole discretion and direction. Notwithstanding any terms to the contrary in this Agreement: the following sections will survive any expiration or termination of this Agreement: 5,6,7,8,9,12.
- 12.1Entire Agreement.
This Agreement, including all ORDER FORMs and all exhibits to this Agreement, sets forth the entire agreement and understanding of the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous agreements, proposals, negotiations, conversations, discussions and understandings, written or oral, with respect to such subject matter and all past dealing or industry custom. In the event of any conflict between the terms and conditions of this Agreement and the terms and conditions of any exhibit, the terms and conditions of this Agreement will govern.
- 12.2Independent Contractors.
Neither party will, for any purpose, be deemed to be an agent, franchisor, franchise, employee, representative, owner or partner of the other party, and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by either party, by operation of law or otherwise, without the prior written consent of the other party, which will not be unreasonably withheld, and any attempted assignment and delegation without such consent will be void and without effect. Notwithstanding the foregoing, either party may assign its rights and delegate its obligations under this Agreement without the consent of the other party to: (i) a purchaser of all or substantially all of its voting stock or capital assets; (ii) an acquirer of all or substantially all of its assets; or (iii) an entity with which such party merges into or is consolidated. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties hereto and their respective representatives, heirs, administrators, successors and permitted assigns.
- 12.4Third Party Tools.
Notwithstanding any terms to the contrary in this Agreement, Company acknowledges and agrees that the Services may contain Third Party Tools; BuzzBoard makes no warranties or representations of any kind to Company, regarding such Third Party Tools or that such terms or conditions may not change or be altered by such third parties at any time. Further, Company hereby acknowledges that such third party suppliers and BuzzBoard disclaim and make no representation or warranty with respect to such Third Party Tools or any portion thereof, and assume no liability for any claim that may arise with respect to such Third Party Tools or Company’s use or inability to use the same.
- 12.5Amendments and Waivers.
No modification, addition or deletion or waiver of any rights under this Agreement will be binding on a party unless made in writing, clearly understood by the parties to be a modification or waiver and signed by a duly authorized representative of each party. No failure or delay (in whole or in part) on the part of a party to exercise any right or remedy hereunder will operate as a waiver thereof or effect any other right or remedy. All rights and remedies hereunder are cumulative and are not exclusive of any other rights or remedies provided hereunder or by law. The waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default.
Any notice or communication required or permitted to be given hereunder must be in writing signed or authorized by the party giving notice, and may be delivered by hand, deposited with an overnight courier, sent by confirmed email, confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party as identified on this Agreement or at such other address as may hereafter be furnished in writing by either party to the other party. Such notice will be deemed to have been given as of the date it is delivered.
- 12.7Force Majeure.
Except for payments due under this Agreement, neither party will be responsible for any failure to perform or delay attributable in whole or in part to any cause beyond its reasonable control, including but not limited to acts of God (fire, storm, floods, earthquakes, etc.), civil disturbances, disruption of telecommunications, disruption of power or other essential services, interruption or termination of service by any service providers being used by BuzzBoard to link its servers to the Internet, labor disturbances, vandalism, cable cut, computer viruses or other similar occurrences, or any malicious or unlawful acts of any third party. In the event of any such delay the date of delivery will be deferred for a period equal to the time lost by reason of the delay.
- 12.8Section Headings.
The section headings contained in this Agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement.
- 12.9Governing Law; Venue.
This Agreement is made and will be governed by and construed in accordance with the laws of the State of New York, excluding its choice of law principles to the contrary. The parties agree that the venue for any dispute, obligation or action of any kind arising under this Agreement will be in the state or federal courts located in the County of New York, New York, and the parties irrevocably consent to the exclusive jurisdiction of the state and federal courts of the state of New York for any dispute, obligation or action hereunder and agree not to commence or prosecute any suit, proceeding or claim hereunder, except in such courts.
This Agreement will be fairly interpreted in accordance with its terms and, as each party acknowledges, the benefit of counsel in the drafting and negotiation thereof will not be construed in favor of or against any party.
If any provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will nonetheless remain in full force and effect so long as the economic and legal substance of the transactions contemplated by this Agreement is not affected in any manner adverse to any party. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled.
This Agreement may be executed: (i) in two or more counterparts, each of which will be deemed an original and all of which will together constitute the same instrument; and (ii) by the parties by exchange of signature pages by telecopier, facsimile or email.
- 12.13Advice of Legal Counsel.
Each party acknowledges and represents that, in executing this Agreement, it has had the opportunity to seek advice as to its legal rights from legal counsel and that the person signing on its behalf has read and understood all of the terms and provisions of this Agreement.
- The Hosted Services will be available at least 99.5% over one-month periods, excluding any System Maintenance or Force Majeure Events (as defined below). Availability will be calculated on a monthly basis using the following formula: [(Actual Availability divided by Total Scheduled Availability) multiplied by 100%]. The following definitions will apply with respect to the calculation of Availability:
- “Actual Availability” means Total Scheduled Availability minus Downtime, in minutes.
- “Downtime” means the time (in minutes) that users of the Hosted Services are not able to (a) access the material functionality of the System, or (b) utilize the Hosted Services for normal business operations due to failure malfunction or delay. Downtime does not include any unavailability due to System Maintenance or a failure or defect arising out of a Force Majeure Event.
- “Force Majeure Event” means any failure or delay caused by or the result of causes beyond the reasonable control of BuzzBoard and could not have been avoided or corrected through the exercise of reasonable diligence, including, but not limited to, acts of God, fire, flood, hurricane or other natural catastrophe, terrorist actions, laws, orders, regulations, directions or actions of governmental authorities having jurisdiction over the subject matter hereof, or any civil or military authority, national emergency, insurrection, riot or war, general failure of telecommunication or digital transmission links, general failure of the Internet, or other similar occurrence.
- “System Maintenance” means time (in minutes) that the Hosted Service is not accessible to due to maintenance of the System, including for maintenance and upgrading of the software and hardware used by BuzzBoard to provide the Hosted Services. System Maintenance includes scheduled maintenance and unscheduled, emergency maintenance. BuzzBoard will provide Customer with at least 48 hours’ prior written notice of any scheduled maintenance or sixty minutes’ advance written notice for unscheduled, emergency maintenance. BuzzBoard will provide the notices of maintenance to Customer via email or any such means of communciation. System Maintenance in any given month will not exceed 60 minutes per week and will only be performed between the hours of 11:00 p.m. EST and 04:00 a.m. EST.
- “Total Scheduled Availability” means 7 days per week, 24 hours per day, excluding System Maintenance, in minutes.
|Hosted Services Availability Level||SLA Credit|
|99% – 99.49999%||5% of total monthly fee applicable to month in which failure occurred|
|96% – 98.99999%||10% of total monthly fee applicable to month in which failure occurred|
|80% – 95.99999%||35% of total monthly fee applicable to month in which failure occurred|
|<80%||50% of total monthly fee applicable to month in which failure occurred|
SLA Credit Procedures:
The SLA Credits for any given month in which they are incurred will be issued as a credit against the next month’s Service Fees or, if no additional Service Fees are payable or when the applicable Order Form terminates, will be provided to Customer in the form of a refund paid within 30 days after the effective date of termination. All requests for credits must (i) be sent by email to email@example.com, (ii) include Customer’s name and sufficient detail pertaining to the alleged outage to permit BuzzBoard to investigate (e.g. dates, duration, etc.) and (iii) be received by BuzzBoard within thirty (30) days after the end of the calendar month during which such credit accrued.
Chronic SLA Failure:
In addition to the SLA Credits set forth above, if BuzzBoard fails to meet a System Availability of 90% in any two months in a rolling six month period during the term of this Agreement, Customer will have the right in its sole discretion to terminate the Agreement immediately upon written notice to BuzzBoard.