The “Services” are those web-based products and services described at www.argylesocial.com (the “Site”), as may be modified by Argyle from time to time. Subject to the terms and conditions set forth herein and in any rules, policies and procedures posted on the Site (the “Rules”), Argyle will use commercially reasonable efforts to provide Customer with the Services. This Agreement and the Rules may be modified by Argyle from time to time, which modifications shall become effective once posted on the Site. In the event of a conflict between any term or condition set forth herein and in any Rule, the former shall prevail.
Among other actions, the Services facilitate Customer’s electronic publication of Customer-owned or -controlled content (the “Content”) to recipients that have consented to the receipt of, or otherwise to view, such content (the “Followers”) through certain of their social networks as described on the Site (e.g. Facebook™, Twitter™ and LinkedIn™) (each, a “Social Network”). While Argyle’s Services facilitate such publication, Customer understands Argyle does not actually send Content to Followers. In the case of each publication, Customer is the “sender” of Content. Accordingly, Customer acknowledges and agrees that it is solely responsible for ensuring that its use of each Social Network and each publication of Content to Followers through each Social Network: (i) complies with all applicable foreign, federal and state laws and regulations; (ii) does not violate any term, condition, rule, procedure, policy or other guideline published by such Social Network; and (iii) does not infringe on, misappropriate or otherwise violate the intellectual property, privacy or other rights of any third party. Customer expressly agrees that it will not use the Services: (a) to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (b) to send or store infringing, obscene, threatening, harassing, libelous, or otherwise unlawful or tortuous material, including material harmful to children or violative of third party privacy rights; (c) to send messages to any purchased (recipient) lists, purchased distribution lists, purchased newsgroups, or purchased email addresses; (d) to send or store material containing harmful or malicious code; or (e) in any other manner which violates any applicable law. Customer understands and agrees that it is solely responsible for all fees charged by a Social Network. The termination of Customer’s access to, or use of, any Social Network will not terminate this Agreement and Argyle is not responsible for any affect on the Services arising from such termination. Argyle reserves the right to discontinue the Services (or any part thereof) with or without notice, if Customer’s use of the Service violates any terms or condition set forth in this Agreement or in any agreement between Customer and a Social Network.
Argyle may provide Customer with an option to use the Services on a free trial basis. In such event, Customer will not billed for such use for that period of time as may be determined by Argyle. Once such free trial period expires, Customer’s access to the Services will be disabled until Customer upgrades to a paid account and remits payment therefor. Argyle reserves the right to modify the duration of, or to terminate, the free trial period at any time.
Pricing for the Services is based on the account type to which Customer subscribes as described on the pricing page posted on the Site, the landing page through which Customer subscribed to use the Services, or in a sales order or addendum (as applicable) (in any event, the “Sales Order”). If Customer desires to upgrade its Argyle customer account or to add to the Services the Application (as defined below), it may do so by contacting: email@example.com. As consideration for the Services, Customer agrees to pay the monthly or annual subscription fees set forth in the Sales Order (the “Fees”). Payments for Fees and reimbursements for expenses, if any, will be billed in advance on a monthly or annual basis (as applicable) and will be due immediately upon receipt of invoice, or as otherwise provided in the Sales Order. In the event Customer fails to make timely payments when due, Argyle may discontinue, terminate or suspend the Services, without incurring any liability to Customer. Despite any such discontinuation or suspension, Customer acknowledges and agrees that it will be required to pay the Fees until this Agreement is terminated in accordance with the termination provisions set forth herein.
At any time after it subscribes to use the Services, Customer may subscribe to use Argyle’s private label publisher application, which enables Customers to private label certain Content delivery components of the Service (the “Application”), by contacting: firstname.lastname@example.org and paying the subscription fee therefor. Upon activation, the Application will be considered part of the “Services,” and Customer’s use of the Application will be subject to the terms and conditions set forth herein. Once the Application is activated, Customer’s Marks (as defined below) will be displayed prominently on each Content publication using the Services. In connection with the Application, Customer hereby grants to Argyle a nonexclusive license to use any trade names, trademarks, service marks, “d/b/a”s, names, URLs, or logos (collectively, the “Marks”) that Customer provides to Argyle in connection with the Application.
This is an agreement for services and Customer is not granted any license hereunder. All software embedded in the Services (including, without limitation, in the application programming interface to which Customer will have access through a unique access key (the “API Key”)) and in the Application developed, owned or controlled by Argyle (as applicable) (the “Software”), and the Services, are and shall remain the sole and exclusive property of Argyle. Customer agrees that Customer will not directly or indirectly: (i) assign, distribute, license, sublicense, transfer, sell, rent, lease, time share, grant a security interest in, or otherwise transfer any rights in or to the Software, or make the Software available to third parties except as authorized by this Agreement; (ii) modify, translate, reverse engineer, decompile or disassemble the Software for any purpose, including, without limitation, the creation of derivative works or similar products; (iii) upload, link to or post any portion of the Software on a bulletin board, intranet, extranet or web site; or (iv) possess or use the Software in any format other than machine-readable format.
In connection with its provision of the Services, Argyle will collect, consolidate and analyze personal information and data about Customer Social Data (the “Data”). Argyle will not own any Data; provided, however, that Customer hereby grants to Argyle a non-exclusive, perpetual, Worldwide license to use non-personally identifiable Customer Social Data in aggregate and blinded formats that do not identify, reference or imply an association with, Customer or its Followers, for the purposes of creating benchmarking, statistical, research and marketing analyses, surveys, reports and studies. After the thirtieth (30th) day following any termination or expiration of this Agreement, Customer agrees Argyle has no obligation to retain the Customer Social Data and may delete and destroy such Customer Social Data without providing Customer with notice of such deletion. If Customer uses the Services during the free trial period described in Section 3 above and fails to convert its account to a standard paid account upon the expiration or other termination of such trial period, Argyle may delete the Customer Social Data after the date of such expiration or termination. Subject to the license set forth herein, Customer Social Data will be considered Customer’s Confidential Information (as defined below).
Argyle collects certain personal and business-related information about its Customers, which generally includes, but is not limited to, contact information (the “Customer Information”). Customer consents to Argyle’s use and disclosure of such information solely in connection with its provision of the Services. Subject to the foregoing, Customer Information will be considered Customer’s Confidential Information. All billing and credit card information will be submitted to, and stored by, a third party payment processor. Customer understands Argyle will not have access to any such information and agrees Argyle will not be liable for any losses or damages arising from such third party payment processor’s acts or omissions. Such information will not be considered Customer Information.
In connection with Customer’s access to the Services, Customer will create unique user-ids and passwords (the “Unique Passwords”). Customer agrees to maintain the Unique Passwords and the API Key in strict confidence and not to provide the Unique Passwords or the API Key to any third party without first obtaining Argyle’s prior written consent. In the event any API Key or Unique Password is lost or compromised, Customer will be responsible solely for all actions and fees incurred as a result of such loss or compromise, except to the extent arising from Argyle’s gross negligence or willful misconduct.
Each Receiving Party (as defined below), will hold in strict confidence, not use except as otherwise authorized herein, and protect from disclosure to unauthorized third parties the Confidential Information of the Disclosing Party (as defined below). For purposes hereof, “Confidential Information” means any information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) that relates to such Disclosing Party that reasonably should be known by the Receiving Party to be confidential or proprietary to the Disclosing Party under the circumstances of disclosure or in light of the nature of the information disclosed. Confidential Information will not include information that: (i) was publicly available, or that subsequently becomes publicly available, except by wrongful disclosure hereunder by the Receiving Party; (ii) was in the Receiving Party’s possession prior to receipt of the same hereunder, as evidenced by the Receiving Party’s prior written records; or (iii) was received from a third party who was not known by the Receiving Party to be under any obligation of confidentiality with respect to such information or to have violated any applicable law. Nothing set forth herein shall be construed to prohibit Argyle from disclosing Customer’s Confidential Information to any third party that has a need to know such information in connection with the Services or with the enforcement of its rights hereunder. From time to time, Argyle may be required to disclose Customer’s Confidential Information by order or other requirement of a court (e.g. subpoena), administrative agency, or other governmental body or applicable law, as determined by Argyle or its legal counsel. In such event, Customer hereby permits Argyle to disclose such information to the extent necessary to comply with such order or legal requirement, which disclosure shall not be construed as a breach of this Section 10.
Argyle does not make any representations, warranties or guarantees with respect to any third party products or services. While Argyle may rely on data or information provided or generated by such third party products and services in the course of providing the Services, Customer hereby acknowledges that Argyle specifically does not warrant the accuracy, reliability or completeness of any such data and information; and agrees that Argyle shall not be liable for any acts or omissions based on its reliance thereon.
Customer represents and warrants to Argyle that: (i) if an individual, Customer is at least eighteen (18) years old; (ii) if an entity, it is a company duly organized and validly existing in good standing under the laws of the state in which it was organized; (iii) it has full power and authority to enter into this Agreement, which constitutes a legal, valid and binding obligation enforceable against it in accordance with the terms hereof; (iv) its use of the Customer Social Data, the Services and the Application, including, without limitation, its publication and delivery of the Content to the Followers, is and will at all times be: (a) in accordance with: (A) the terms and conditions set forth in this Agreement, the Rules and all terms, conditions, rules, procedures, policies or other guidelines published by each Social Network, and (B) all applicable laws, rules and regulations; and (b) without infringement or misappropriation of any intellectual property right or other right of a third party; and (vi) neither Customer nor any of its officers, directors or personnel is located in a United States embargoed country, or is, or has been, named on the United States Treasury Department’s listing of specially designated nationals and blocked persons or is, or has been, otherwise blacklisted by any instrumentality of the United States.
Customer agrees to indemnify, defend and hold harmless Argyle and its affiliates, subsidiaries, officers, directors, stockholders, employees, consultants, representatives, agents, successors and assigns from and against any and all claims, losses, liabilities, sums of money, damages, expenses, costs (including, but not limited to, reasonable attorneys’ fees) and/or actions arising from: (i) Customer’s (or Agency Client’s (as defined below)) violation of any applicable law; (ii) Customer’s (or Agency Client’s) breach of any term, condition, representation or warranty set forth in this Agreement; (iii) any claim or action brought by a Social Network; and/or (iv) any claim or action brought by a Follower.
THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ARGYLE DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, TITLE, OR NON-INFRINGEMENT. ARGYLE DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS NOR DOES IT GIVE ANY WARRANTY ABOUT THE RESULTS THAT MAY BE OBTAINED BY USING THE SERVICES.
IN NO EVENT WILL ARGYLE BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATED TO THE SERVICES, OR TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, LOSS OF USE, OR LOSS OF PROFITS, EVEN IF ARGYLE HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. FURTHER, IN NO EVENT WILL ARGYLE’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER OR ANY OTHER PARTY FOR CLAIMS, LOSSES, OR DAMAGES OF ANY KIND, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, INDEMNITY OR OTHERWISE, ARISING OUT OF OR RELATED IN ANY WAY TO THIS AGREEMENT OR THE SERVICES EXCEED THE FEES PAID HEREUNDER DURING THE TWELVE (12)-MONTH PERIOD ENDING ON THE DATE OF THE CAUSE OF ACTION UNDERLYING SUCH CLAIM, LOSS OR DAMAGE. No claim may be asserted by Customer against Argyle more than twelve (12) months after the date of the cause of action underlying such claim.
The term of this Agreement commences on the date of Customer’s first acceptance of this Agreement and shall continue unless and until terminated in accordance with the terms and conditions set forth herein (the “Term”). This Agreement will terminate automatically upon the expiration of Customer’s free trial period (if any). Notwithstanding any termination or expiration of this Agreement, Customer will remain obligated to pay Argyle Fees which were incurred prior to (and on) the effective date of such termination or expiration, as the case may be.
This Agreement will be governed by the laws of the State of North Carolina as applied to agreements entered into and performed entirely within the State of North Carolina, except for those conflicts of law rules thereof that would require or permit the application of the laws of another jurisdiction. Both parties hereto irrevocably consent to the jurisdiction of the state and federal courts located in Wake County, North Carolina. The rights and obligations of the parties under this Agreement shall not be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods.
Argyle may provide Customer with general notice by electronic mail to Customer’s e- mail address of record. Customer must give notice to Argyle (such notice shall be deemed given when received by Argyle) by emailing Argyle at email@example.com.
This Agreement, the Rules and any addenda executed by the parties and expressly referencing this Agreement constitute the entire agreement and understanding between Argyle and Customer and supersede all prior and contemporaneous agreements, documents, and proposals, oral or written, between the Argyle and Customer. Customer may not transfer, assign, sublicense, or delegate any right or duty under this Agreement to another entity or person without the express written consent of Argyle. Argyle’s failure to exercise any of its rights under this Agreement will not constitute or be deemed to constitute a waiver or forfeiture of such rights or of any preceding or subsequent breach or default. The provisions of this Agreement that by their nature and context are intended to survive the performance and termination of this Agreement, will survive the completion of performance and termination of this Agreement. Customer agrees Argyle will not be liable for delays or failures on performance resulting from causes beyond its reasonable control. At any time prior to, or during, its use of the Services, Customer may enter into certain other agreements or addenda with Argyle which are expressly subject to the terms and conditions set forth in this Agreement. In the event of any conflict between a term or condition set forth therein and herein, the latter shall prevail unless the former expressly provides otherwise.
If Customer subscribes to an “Agency” account as described on the Site, Argyle will create for Customer a master administrative account under which Customer may create a sub-account for each client of Customer that authorizes Customer to create such an account on its behalf and that desires to access and use the Services (each, an “Agency Client”). In such event, Customer hereby understands and agrees that its acceptance of this Agreement will constitute an acceptance of this Agreement for itself and for and on behalf of each Agency Client. Accordingly, Customer hereby acknowledges and agrees that Customer will be liable for each and every breach by an Agency Client of any term, condition, representation, warranty, restriction or covenant set forth in this Agreement.