Terms and Conditions
These Terms and Conditions are expressly made a part of, and are incorporated into, the SaaS License and Services Agreement (the “Agreement”) between Statusphere, Inc. (“Statusphere” or the “Company”) and the client identified in the Agreement referencing these Terms and Conditions (the “Client”). Capitalized terms used but not otherwise defined herein shall have the meanings set forth in the Agreement.
1. Grant of License to Access and Use Service. Statusphere hereby grants to the Client identified in the Agreement a non-exclusive, non-sublicensable, non-assignable, royalty-free, and worldwide license to access and use the Company’s software as a service (the “Software”) as part Client’s license to use Statusphere’s platform (collectively, the “Platform”) and related services (together with the Software and the Platform, the “Services”) solely for Client’s internal business operations in accordance with the terms of the Agreement and the terms set forth herein. In consideration for the Client’s license to the Services, Client will pay the Company the fees in the amounts and at the times set forth in the Agreement (the “Fees”). Access and use of the Services shall be provided by Company in accordance with the terms of the Agreement and these Terms and Conditions. If there is a conflict between the terms of the Agreement and these Terms and Conditions, the terms of these Terms and Conditions will control, unless the Agreement states that a specific provision of the Agreement will be superseded by a specific provision of the Order Form.
Company shall make the Platform available to Client during the Term of the Client’s license (as set out in the applicable Order Form) and will provide basic support to Client in respect to Client’s permitted use of the Platform. Client agrees that Company can access and disclose Client’s account information solely in order to provide Client with the Services and any related support or ancillary services. Company will not otherwise disclose any Client account information except (A) if compelled by law provided that, in such event, prior to any disclosure, Company will provide Client immediate written notice in order to permit Client to contest disclosure and/or seek confidential treatment of its Confidential Information, or (B) as permitted by Client in writing. Company may utilize a subcontractor or other third party to partially perform its duties under the Agreement so long as Company remains responsible for any act or omission of such subcontractors in the performance of Company’s obligations.
2. Term. The term of Client’s license shall begin on the License Start Date identified on the Order Form and will continue for the Term, unless terminated in accordance with the terms herein.
3. Provisions Regarding Products.
3.1 Approval of Products. All Products provided to Influencers are subject to due diligence by Statusphere, including product testing, and are subject to Statusphere’s reasonable approval. Fulfillment services are not provided for wine, spirits, or other alcoholic beverages.
3.2 Additional Shipping Charges. Statusphere will pay for standard shipping costs of Products. Additional shipping charges may apply if a Product weighs more than two (2) lbs., its packaging exceeds more than 10” on any side, if the Product is liquid, flammable, frozen or refrigerated, or Client requires additional care or expedited transport. Client shall be prior to incurring any additional charges for these types of shipping.
3.3 Client Shipping. Client may elect to handle Product shipping, subject to the reasonable approval of Statusphere. If Client handles shipping, a Fulfillment Integration Fee will be charged as set forth on an Order Form as an Add On. Client agrees to ship anywhere in the United States. Client may only use Statusphere Influencers’ shipping information for the purposes of this campaign.
i. Client is responsible for fulfilling Influencer orders within two (2) business days of receiving Influencers’ shipping information from Statusphere. Client will provide Influencers’ shipment tracking information to Statusphere in a timely manner. Statusphere may require additional units to be shipped to Influencers to account for shipping issues, product defects, etc.
ii. If Client does not ship a Product in time for Influencers to receive the Product within 2 weeks of being provided Influencer addresses by Statusphere, Client agrees that Statusphere will utilize one Credit to cover campaign setup and creator-matchmaking. Statusphere will use a portion of the amount paid for such Credit to compensate Influencers.
3.4 Product Fulfillment Through Website. If a Product is provided through an Influencer’s checkout on a website, this must be approved and tested by Statusphere. Influencers must not incur any costs to receive the Product and must not be required to input a credit card to receive the Product. If Influencers encounter fulfillment issues, Statusphere reserves the right to pause or terminate Client’s campaigns and its Services in order to address any fulfillment issues, and/or to deduct the number of Influencers encountering fulfillment issues from the number of Influencers Statusphere estimated would be matched with Client in a campaign.
4. Support Services; Service Levels.
4.1 Support. During the Term, Client shall receive the support identified in the Agreement.
4.2 Service Levels. Company shall provide the Services to Client with a System Availability of at least 99% during each calendar month (excluding holidays and weekends).
(a) “System Availability” means the percentage of minutes in a month that the key components of the Services are operational.
(b) Not Included in System Availability. “System Availability” will not include any minutes of downtime resulting from: (i) scheduled maintenance; (ii) events of force majeure; (iii) malicious attacks on the Company’s or on Client’s systems; (iv) issues associated with Client’s computing devices, local area networks or internet service provider connections, or (v) Company’s inability to deliver services because of Client’s acts or omissions.
5. Confidentiality Obligations.
5.1 Proprietary Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality, and performance of the Services. Proprietary Information of Client includes non-public data provided by Client to Company to enable the provision of the Services (“Client Data”). The Receiving Party agrees: (i) to take commercially reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any 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 without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
5.2 Ownership of Client Data. Client shall own all right, title, and interest in and to the Client Data.
5.3 Ownership of Software and Platform. Company shall own and retain all right, title, and interest in and to (a) the Services, all improvements, enhancements, or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with developing or providing the Services or support, and (c) all intellectual property rights related to any of the foregoing.
5.4 Safeguards. Company shall implement appropriate and commercially reasonable safeguards to prevent unauthorized access to, use of, or disclosure of the Client Data to third parties.
5.5 Limited Use of Client Data. Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Client Data and data derived therefrom), and Company may (i) use such information and data for internal business purposes only to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in an aggregated, or other de-identified form.
Notwithstanding the foregoing, to the extent that Company utilizes Client Data as set forth in this section: (i) Company shall be solely responsible for ensuring that any such usage has been fully anonymized, such that it does not, and cannot be used to, identify individual data subjects or Client; (ii) Company shall be solely responsible for the legal basis for any such use, including ensuring that it has any necessary rights, permissions, or consents from individual data subjects, and ensuring that its use of Client Data is permitted by all applicable laws and social media platform policies/term of use; and (iii) Company shall defend and indemnify Client from and against all third party claims based on, or arising from, Company’s use of such Client Data.
6. Client Restrictions. Client will not: (a) distribute, license, loan, or sell the Software or Services or other content that is contained or displayed in it; (b) modify, alter, or create any derivative works of the Software; (c) reverse engineer, decompile, decode, decrypt, disassemble, or derive any source code from the Software; (d) remove, alter, or obscure any copyright, trademark, or other proprietary rights notice on or in the Software; (e) upload, post, reproduce or distribute any information, software, or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights.
7. Insurance. The Company will maintain, at its sole expense, insurance in such amounts and with such types of coverage as is usual and customary with coverage limits that are appropriate for the Services provided by the Company under the Agreement.
8. Export Compliance. Client acknowledges that the Software, Platform and all documentation and other technical information described herein are subject to export controls under United States laws including but not limited to the Export Administration Act and the regulations promulgated hereunder. Client agrees to: (a) comply strictly with all legal requirements established under these controls; (b) cooperate fully with any official or unofficial audit or inspection that relates to these controls; and (c) not export, re-export, divert, transfer, or disclose directly or indirectly, any Software or documentation to any country, or to the nationals of any such country, which the United States government determines is a country to which such export, re-export, diversion, transfer, or disclosure is restricted. Any breach of this provision shall be considered a material breach of the Agreement.
9. Ownership of Intellectual Property. The Company will retain all interest in and to the Software, the Platform and the Services, including all documentation, modifications, improvements, upgrades, derivative words, and all other intellectual property rights in connection with the Software, the Platform and the Services, including the Company’s name, logos, and trademarks reproduced through the Services.
Client will own all right, title, interest in and to any content, materials, images or audiovisual content provided to Company in connection with the Agreement including, without limitation, Client’s trademarks and other proprietary indicia of Client that may be provided to Company solely in order for Company to perform the services described in the Order Form (“Client Content”).
10. Warranties.
10.1 General. Each of the Company and the Client party represents and warrants to the other that it has the legal power to enter into the Agreement and will comply with all international, federal, state, and local laws, regulations, statues, orders, or other governmental directives applicable to its activities under the Agreement.
10.2 Service Warranties. Company represents and warrants that (a) during the Term it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof, (b) it owns the Services, or has the authority to grant the licenses granted hereunder, (c) the Services and the intended use thereof in accordance with the terms of the Agreement, do not or will not infringe, violate, or misappropriate any patents, copyrights, trademarks, trade secrets, or other proprietary or intellectual property rights of any third party, or defame, libel, or invade the privacy of any third party; and (d) the Services will not contain any viruses, trojan horses, or other malicious code or function.
11. Termination.
11.1 Termination on Notice. The Term shall be for the initial Term specified in the Agreement and is renewable for additionallicense periods in accordance with Section 2, above.
11.2 Termination for Material Breach. Each party may terminate this agreement with immediate effect by delivering notice of the termination to the other party, if:
(a) the other party fails to perform, has made or makes any inaccuracy in, or otherwise materially breaches, any of its obligations, covenants, or representations, and
(b) the failure, inaccuracy, or breach continues for a period of 30 days after the injured party delivers notice to the breaching party reasonably detailing the breach.
11.3 Termination for Failure to Pay. Company may terminate the Agreement with fifteen (15) days prior written notice if Client fails to pay the agreed upon Credit fees per the agreed upon payment terms during the Term.
12. Effect of Termination.
12.1 Pay Outstanding Amounts. Upon receipt of the final invoice, Client shall pay to Company all amounts outstanding as of the date of, and any amounts outstanding as a result of, termination.
12.2 Discontinuance of Use. Client shall cease all use of the Services upon the effective date of the termination.
12.3 Recovery of Data. Client will have 30 days from the date of termination to retrieve any Client Data that Client wishes to keep, and the Company shall make such data available to Client electronically during such 30-day period; thereafter Company may delete such Client Data.
12.4 Survival. Sections 5 through 15 herein shall survive any termination of the Agreement.
13. Indemnification. Each party (the “Indemnifying Party”) shall defend the other party and its parent, subsidiaries, directors, officers and employees (collectively the “Indemnified Parties”) from and against any actions, suits, or proceedings brought against the Indemnified Parties by a third party (each, a “Claim”), and in relation to such Claims, pay: (a) all defense costs (including reasonable attorneys’ fees and expenses), (b) any settlement amounts negotiated by the Indemnifying Party, provided that the Indemnified Party may elect to represent itself at any time with counsel of its own choosing, at its own expense, (c) all damages awarded by a court after all appeals have concluded, and (d) any other losses, fines, penalties, costs and other amount directly incurred by any such Indemnified Party in connection with the Claim, each to the extent such Claims are based on or arise from: (i) violation of any law or regulation by the Indemnifying Party (including, without limitation, any privacy, data or personal information protection law or regulation); (ii) real or tangible property damage or bodily injury or death caused by the negligent or willful acts or omissions of the Indemnifying Party, its employees, subcontractors and agents in connection with the Agreement; (iii) where Company is the Indemnifying Party, any allegation that (I) the Service and/or the Software or Platform as provided by Company infringes any third-party intellectual property right, or any applicable laws, rules or regulations, including any laws relating to Company’s data protection obligations; or (II) Company has violated any social media policies/terms of use, and (iv) where Client is the Indemnifying Party, any allegation that the Client Data or Client Content or use of the Services in violation of the Agreement, infringes or misappropriates the intellectual property of any third party.
14. Limitation on Liability; Waiver of Jury Trial.
14.1 WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATED TO THE SUBJECT MATTER HEREOF.
14.2 LIMITATION OF LIABILITY. NEITHER PARTY SHALL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY UNDER THIS AGREEMENT FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES ARISING OUT OF OR RESULTING FROM ANY USE OF ANY MATERIALS PROVIDED BY CLIENT, ANY MALFUNCTIONS, DELAYS, LOSS OF DATA, LOSS OF PROFIT, INTERRUPTION OF SERVICE, OR LOSS OF BUSINESS OR ANTICIPATORY PROFITS.
EXCLUDING A PARTY’S ANY BREACH OF CONFIDENTIALITY OR INDEMNIFICATION OBLIGATIONS HEREIN, THE PARTIES AGREE THAT EACH PARTY’S MAXIMUM AGGREGATE LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT SHALL BE AN AMOUNT EQUAL TO THE FEES PAID OR PAYABLE BY SUBSCRIBER UNDER THIS AGREEMENT FOR THE TWELVE MONTH PERIOD PRECEDING THE CLAIM.
EACH OF THE COMPANY AND THE CLIENT WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATED TO THE AGREEMENT.
15. Other Provisions.
15.1 Force Majeure. A party shall not be liable for any failure of or delay in the performance of the Agreement for the period that such failure or delay is: (i) beyond the reasonable control of a party; (ii) materially affects the performance of any of its obligations under the Agreement; and (iii) could not reasonably have been foreseen or provided against, but will not be excused for failure or delay resulting from only general economic conditions or other general market effects.
15.2 Miscellaneous Terms. If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement will otherwise remain in full force and effect and enforceable. The Agreement is not assignable, transferable, or sublicensable by either party without prior written consent from the other party. The Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of the Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of the Agreement and Client does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under the Agreement each party shall bear the burden of its own legal fees and costs. All notices under the Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested; provided, however, that the Company may modify these Terms and Conditions from time to time, and will notify Client of any material changes, either via email or through the Platform, and continued use of the Platform after modification of the Terms and Conditions shall constitute acceptance of any such changes. The Agreement shall be governed by the laws of the State of Florida without regard to its conflict of laws provisions. The Company and the Client agree that all claims arising out of or relating to the Agreement shall be brought in a state or federal court of competent jurisdiction in Florida, consent to the personal jurisdiction of the state and/or federal courts located in Florida, and waive (a) any objection to jurisdiction or venue, or (b) any defense claiming lack of jurisdiction or improper venue, in any action brought in such courts.