Terms and Conditions of Use for
Click360
Customer and Click360 Inc. (“Click360”) hereby agree as
follows:
1. Scope. These Terms and Conditions shall apply to Customer’s use of Click360’s
subscription services, packaged professional services, all linked pages, content, products
and offline components (“Service” or “Services”) identified in one or more ordering
documents signed by the parties, including any exhibits thereto (“Order” or “Orders”).
These Terms and Conditions and all Orders (collectively referred to as the “Agreement”)
represent the parties’ entire understanding regarding the Services and shall control over
any different or additional terms of any purchase order or other non-Click360 ordering
document, and no terms included in any such purchase order or other non-Click360
ordering document shall apply to the Services. In the event of a conflict between these
Terms and Conditions and an Order, the terms of the Order shall control. All capitalized
terms not defined herein shall have the meanings attributed in the Order.
2. Right to Use the Services.
2.1 During the Subscription Term set forth in an Order. Click360 grants to Customer
a nontransferable, nonexclusive, worldwide right to permit those individuals
authorized by Customer or on Customer’s behalf, and who are Customer’s
employees, agents or contractors (“Users”), to access and use the Services subject
to the terms of the Agreement.
2.2 The Services are provided by Click360 from a data center facility to which Users
have remote access via the Internet in conjunction with certain offline components
provided by Click360 hereunder. Each Order defines specific usage rights (“Usage
Rights”), and Customer shall at all times ensure that its use does not exceed its Usage
Rights.
2.3 Customer shall be solely responsible for obtaining and maintaining appropriate
equipment and ancillary services needed to connect to, access or otherwise use the
Services, including, without limitation, computers, computer operating system and
web browser (collectively, “Equipment”). Customer shall ensure that Equipment
complies with all configurations and specifications set forth in Click360’s
documentation.
3. Usage Restrictions and
Representations.
3.1 Customer shall not, directly or indirectly: (i) reverse engineer, decompile,
disassemble or otherwise attempt to discover the source code, object code or
underlying structure, ideas or algorithms of the Services or any software,
documentation or data related to or provided with the Services (“Software”); (ii)
modify, translate, or create derivative works based on the Services or Software; or
copy (except for archival purposes), rent, lease, distribute, pledge, assign, or
otherwise transfer or encumber rights to the Services or Software; (iii) use or access
the Services to build or support, and/or assist a third party in building or supporting,
products or services competitive to Click360; or (iv) remove any proprietary notices
or labels from the Services or Software. Customer shall use the Services and
Software only for its own internal business operations, and not for the operation of a
service bureau or timesharing service.
3.2 Customer shall not knowingly or willfully use the Services in any manner that could
damage, disable, overburden, impair or otherwise interfere with Click360’s provision
of the Services. Customer shall be responsible for maintaining the security of the
Equipment and Customer’s account access passwords. Customer and Click360
agree to make every reasonable effort to prevent unauthorized third parties from
accessing the Services. Customer shall be liable for all acts and omissions of its
Users.
3.3 Customer represents and warrants that Customer will use the Services only in
compliance with Click360’s Use Policies attached as Exhibit A (as may be amended
from time to time upon written notice to Customer), and all applicable (i) social
networking sites’ terms and conditions associated with its procurement and use of
Customer Data; and (ii) laws and regulations, including those related to spamming,
privacy, data protection , intellectual property, consumer and child protection,
pornography, obscenity or defamation.
3.4 Click360 may immediately suspend Customer’s password, account, and access
to the Services if (i) Customer fails to make payment due within ten business days
after Click360 has provided Customer with notice of such failure; or (ii) Customer
violates Section 2.1, 3, or 9 of these Terms and Conditions. Any suspension by
Click360 of the Services under the preceding sentence shall not relieve Customer of
its payment obligations under the Agreement.
4.
Ownership.
4.1 Click360 owns or has rights to all intellectual property rights in and to the Services
and Software (including all derivatives or improvements thereof). All suggestions,
enhancements requests, feedback, recommendations or other input provided by
Customer or any other party relating to the Services or Software shall be owned by
Click360, and Customer hereby does and shall make all assignments and take all
reasonable acts necessary to accomplish the foregoing ownership. Any rights not
expressly granted herein are reserved by Click360.
4.2 Customer owns any data, information or material originated by Customer that
Customer submits, collects or provides in the course of using the Services, including
information regarding Customer’s social networking “connections” “followers” or other
contacts activated through use of the Services (“Customer Data”). Click360 has no
ownership rights in or to Customer Data. Customer shall be solely responsible for the
accuracy, quality, content and legality of Customer Data, the means by which
Customer Data is acquired and the transfer of Customer Data outside of the Click360
Services. Customer Data shall be deemed to be Customer Confidential Information
pursuant to Section 9 below.
5. Billing and Payment.
5.1 Customer shall pay all fees set forth in an Order. All fees are non-cancelable and
nonrefundable, except as expressly specified in Section 7.2. All fees are exclusive of
taxes, levies, or duties imposed by taxing authorities, and Customer shall be
responsible for payment of all such taxes, levies, or duties (excluding taxes based on
Click360’s income), even if such amounts are not listed on an Order. Customer shall
pay all fees in U.S. Dollars or in such other currency as agreed to in writing by the
parties.
5.2 All amounts invoiced hereunder are due and payable as specified in the Order.
Unpaid invoices that are not the subject of a written good faith dispute are subject to
a finance charge of 1.5% per month on any outstanding balance, or the maximum
permitted by law, whichever is lower, plus all reasonable expenses of collection.
5.3 If at any time Click360 determines that Customer is exceeding the Usage Rights,
Click360 shall notify Customer and Customer shall bring its usage within the limits of
such Usage Rights. If Customer fails to do so within 30 days of receipt of Click360’s
notice, Click360 reserves the right to charge and Customer agrees to pay Click360’s
then-current usage fees for such overage.
6. Term and Termination.
6.1 The Agreement shall commence as of the date set forth in the first Order and,
unless earlier terminated as set forth below, shall remain in effect through the end of
the Subscription Term in any current Order. All sections of the Agreement which by
their nature should survive termination will survive, including without limitation,
accrued rights to payment, use restrictions and indemnity obligations, confidentiality
obligations, warranty disclaimers, and limitations of liability.
6.2 In the event of a material breach by either party, the non-breaching party shall
have the right to terminate the applicable Order for cause if such breach has not been
cured within 30 days of written notice from the non-breaching party specifying the
breach in detail. If Click360 terminates an Order for Customer’s material breach, all
fees set forth on such Order are immediately due and payable.
6.3 Upon any termination or expiration of an Order, Customer’s right to access and
use the Services covered by that Order shall terminate. Notwithstanding the
foregoing, at Customer’s request if received within 30 days of termination of the Order,
Click360 will permit Customer to access the Services solely to the extent necessary
for Customer to retrieve a file of Customer Data then in Click360’s possession.
Customer acknowledges and agrees that Click360 has no obligation to retain
Customer Data and that Click360 will irretrievably delete and destroy Customer Data
after 30 days following the termination of the Agreement.
7. Representations, Disclaimer of Warranties, Indemnities.
7.1 Each party represents and warrants to the other party that it has the power and
authority to enter into the Agreement. Click360 warrants to Customer that it will use
best efforts to (a) perform the Services substantially in accordance with its
documentation under normal use; and (b) provide the Services in a manner consistent
with generally accepted industry standards. Customer must notify Click360 of any
warranty deficiencies within 30 days from performance of the relevant Services in
order to receive warranty remedies.
7.2 For breach of the express warranty set forth above, Customer’s exclusive remedy
shall be the re-performance of the deficient Services. If Click360 cannot re-perform
such deficient Services as warranted, Customer shall be entitled to recover a pro-rata
portion of the fees paid to Click360 for such deficient Services, and such refund shall
be Click360’s entire liability.
7.3 The Services may be temporarily unavailable for scheduled maintenance or for
unscheduled emergency maintenance, or because of other causes beyond Click360’s
reasonable control, but Click360 shall use reasonable efforts to provide advance
notice in writing or by e-mail of any scheduled unavailability of the Services.
7.4 Click360 shall defend, indemnify and hold Customer harmless against any loss,
damage or costs (including reasonable attorneys’ fees) incurred in connection with
claims, demands, suits, or proceedings (“Claims”) made or brought against Customer
by a third party alleging that the use of the Service as contemplated hereunder
infringes the intellectual property rights of a third party; provided, that Customer (a)
promptly gives written notice of the Claim to Click360; (b) gives Click360 sole control
of the defense and settlement of the Claim (provided that Click360 may not settle or
defend any Claim unless it unconditionally releases Customer of all liability); and (c)
provides to Click360, at Click360’s cost, all reasonable assistance. Customer shall
defend, indemnify and hold Click360 harmless against any loss, damage or costs
(including reasonable attorneys’ fees) incurred in connection with Claims made or
brought against Click360 by a third party alleging that Customer Data, or Customer’s
use of the Services in violation of the Agreement, infringes the intellectual property
rights of, or has otherwise harmed, a third party or violates any law or regulation;
provided, that Click360 (a) promptly gives written notice of the Claim to Customer; (b)
gives Customer sole control of the defense and settlement of the Claim (provided that
Customer may not settle or defend any Claim unless it unconditionally releases
Click360 of all liability); and (c) provides to Customer, at Customer’s cost, all
reasonable assistance.
7.5 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, CLICK360
AND ITS THIRD PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR
IMPLIED WARRANTIES WITH REGARD TO THE SERVICES, INCLUDING BUT
NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE,TITLE, NON-INFRINGEMENT AND QUALITY.
CLICK360 AND ITS THIRD PARTY PROVIDERS MAKE NO REPRESENTATIONS
OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS,
SUITABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR THE
RESULTS CUSTOMER MAY OBTAIN BY USING THE SERVICES. WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, CLICK360 AND ITS THIRD
PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (A) THE
OPERATION OR USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED
OR ERROR-FREE; OR (B) THE QUALITY OF THE, SERVICES WILL MEET
CUSTOMER’S REQUIREMENTS. CUSTOMER ACKNOWLEDGES THAT NEITHER
CLICK360 NOR ITS THIRD PARTY PROVIDERS CONTROLS THE TRANSFER OF
DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND
THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND
OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS
FACILITIES. CLICK360 IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY
FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY CLICK360, THE
SERVICES ARE PROVIDED TO CUSTOMER ON AN “AS IS” BASIS.
8. Limitation of Liability. NEITHER PARTY SHALL BE LIABLE UNDER ANY
CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR
ERROR OR INTERRUPTION OF USE, INACCURACY OR COST OF PROCUREMENT
OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY OR LOSS OF BUSINESS; (B)
FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL
DAMAGES; (C) FOR ANY MATTER BEYOND IT’S REASONABLE CONTROL, EVEN IF
SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR
DAMAGE; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS
ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE LESSER OF $50,000 OR
THE FEES PAID BY CUSTOMER IN THE PRECEEDING 12 MONTHS.
9. Confidential Information. Each party (the “Receiving Party”) understands that the
other party (the “Disclosing Party”) has disclosed or may disclose information relating to
the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of
the Disclosing Party). Such information includes, without limitation, Customer Data,
information related to Customer’s login identifiers and credentials for Accounts and the
nature and performance of Customer’s marketing programs. The Receiving Party agrees:
(i) to take reasonable precautions to protect such Confidential Information; and (ii) not to
use (except as expressly permitted in Section 10 below) or divulge to any third person
any such Confidential Information. The Disclosing Party agrees that the foregoing shall
not apply with respect to Confidential Information after two years following the termination
of the Agreement or any Confidential Information that the Receiving Party can document
(a) is or becomes generally available to the public; or (b) was in its possession or known
by it prior to receipt from the Disclosing Party; or (c) was rightfully disclosed to it by a third
party; or (d) was independently developed without use of any Confidential Information of
the Disclosing Party; or (e) is required by law. Customer Data will be destroyed as set
forth in Section 6.3, and, upon Customer’s request, Click360 shall certify to such
destruction in writing.
10. Statistical Information. Notwithstanding anything else in the Agreement or
otherwise, Click360 may monitor Customer’s use of the Services and use Customer
Data in an aggregate
and anonymous manner, compile statistical and performance information related to
the provision and operation of the Services, and may make such information publicly
available, provided that such information does not incorporate Customer Data and/or
identify Customer’s Confidential Information. Click360 retains all intellectual property
rights in such information.
11. Notices. Click360 may give notice applicable to Click360’s general Services customer
base by means of a general notice on the Services portal, and notices specific to
Customer by electronic mail to Customer’s e-mail address on record in Click360’s account
information or by written communication sent by first class mail or pre-paid post to
Customer’s address on record in Click360’s account information. If Customer has a
dispute with Click360, wishes to provide a notice under the Agreement, or becomes
subject to insolvency or other similar legal proceedings, Customer shall promptly send
written notice to Click360 at legal@click360.io
12. Force Majeure. Neither party shall be responsible for failure or delay of performance
if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or
telecommunication outage that is not caused by the obligated party; government
restrictions (including the denial or cancellation of any export or other license); or other
event outside the reasonable control of the obligated party. Each party will use
reasonable efforts to mitigate the effect of a force majeure event. If such event continues
for more than 20 days, either party may cancel unperformed Services upon written notice.
This section does not excuse either party of its obligations to take reasonable steps to
follow its normal disaster recovery procedures or Customer’s obligation to pay for the
Services provided.
13. General
provisions.
13.1 Any action, Claim, or dispute related to the Agreement will be governed by
Minnesota law, excluding its conflicts of law provisions, and controlling U.S. federal
law. The Uniform Computer Information Transactions Act will not apply to the
Agreement. In any action or proceeding to enforce rights under the Agreement, the
prevailing party will be entitled to recover costs and attorneys’ fees. The failure of
either party to enforce any right or provision in the Agreement shall not constitute a
waiver of such right or provision unless acknowledged and agreed to by such party in
writing. Except for actions for nonpayment or breach of either party’s proprietary
rights, no action, regardless of form, arising out of or relating to the Agreement may
be brought by either party more than two years after the cause of action has accrued.
13.2 The Agreement and all Order(s), represent the parties’ entire understanding
relating to the Services, and supersede any prior or contemporaneous, conflicting or
additional communications. The exchange of a fully executed Order by fax or
electronic signature shall be sufficient to bind the parties to the Terms and Conditions
of the Agreement and such Order. The Agreement may be amended only by written
agreement signed by t the parties. If any provision of the Agreement is held by a court
of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall
be construed to reflect the intentions of the invalid or unenforceable provision(s), with
all other provisions remaining in full force and effect.
13.3 No joint venture, partnership, employment, or agency relationship exists between
Click360 and Customer as a result of the Agreement or use of the Services. Neither
party may assign the Agreement without the prior written approval of the other, such
approval not to be unreasonably withheld or delayed, provided that such approval
shall not be required in connection with a merger or acquisition of all or substantially
all of the assets of the assigning company. Any purported assignment in violation of
this Section shall be void.
Exhibit A Click360
Use Policies
Email Use and Anti-Spam Policy This policy is incorporated by reference into
Click360’s End User Services Agreement, and all users of the Click360 Service must
comply with this policy at all times.
Click360 has a zero-tolerance policy regarding the sending of Unsolicited Commercial
Email (“UCE”, or “spam”) using the Click360 Service. Any Customer or User account
found to be in violation of this policy is subject to immediate suspension, and will not be
allowed to send any additional emails using the Click360 Service.
Recipients of email messages sent using the Click360 Service are encouraged to report
suspected violation of this policy by forwarding a copy of the received email to
abuse@Click360.io. It is Click360’s policy to catalog, investigate, and take appropriate
action on all reports of abuse.
Acceptable Use and Requirements for Bulk or Commercial Email Customers and
Users shall comply with all laws and regulations applicable to bulk or commercial email
when using the Click360 Service, including without limitation all local or national laws
applicable to the regions where Customers and Users have business operations or
where their email recipients are located, e.g., the United States CAN-SPAM Act of
2003.
In addition, Customers and Users may not send any Unsolicited Email by use or means
of the Click360 Service. “Unsolicited Email” is defined as email sent to persons other than:
(i) persons with whom Customer has an existing business relationship, OR (ii) persons
who have consented to the receipt of such email, including publishing or providing their
email address in a manner from which consent to receive email of the type transmitted
may be reasonably implied.
All Bulk or Commercial Email sent using the Click360 Services must include provision for
recipients to revoke consent, i.e., to “opt out”, of receiving future email contacts from the
sender. Customer shall either use the Unsubscribe tools supplied by default with the
Click360 Service; or, if Customers choose to override the Click360 default tools,
Customer shall have procedures in place to allow an email recipient to easily opt-out,
such as an unsubscribe link in the body of the e-mail, or instructions to reply with the word
“Remove” in the subject line. Customer shall honor any and all such revocations of
consent within 72 hours.
Privacy and Data Protection Customer shall be knowledgeable about and at all times
compliant with all privacy and data protection laws applicable to its location and
operations, such as, by way of example, the European Union Data Protection Directive
and member state implementations thereof.