Last Updated: June 5, 2018
This Terms of Service Agreement (the “Agreement”) is made by and between SocialClimb LLC, a Delaware limited liability company (“SocialClimb”), and the subscriber on whose behalf payment was made through the Payments page of Licensee’s SocialClimb Service Dashboard (“Licensee”) and sets forth the terms and conditions under which SocialClimb will provide and Licensee and its Authorized Users will use certain software applications and related services (collectively, the “Services”). Access to and use of the Services by Licensee or its Authorized Users shall constitute continued acceptance of the terms and conditions of this Agreement. In consideration of the above premises and the mutual promises set forth below and subject to the terms and conditions hereof, the parties hereto agree as follows:
LICENSED DELIVERABLES. For purposes of this Agreement, the term “Licensed Deliverables” shall mean any and all of the following:
a. DERIVATIVE WORK. The term “Derivative Work” means a revision, enhancement, modification, translation, abridgment, condensation or expansion of any Licensed Deliverable or any form in which any Licensed Deliverable may be recast, transferred, or adapted.
b. INFORMATION. The term “Information” means information resulting from the use of any or all of the Licensed Deliverables.
c. LICENSED MATERIALS. The term “Licensed Materials” means any and all materials including documentation and support material, including any on line training materials, in hard copy and electronic format (if available) designed to assist Licensee in the understanding, application, capability, maintenance, or use of the Licensed Deliverables which are delivered to Licensee by SocialClimb pursuant to and/or during the term of this Agreement.
d. SOFTWARE. The term “Software” means (i) the proprietary software applications made available to Licensee pursuant to the terms of this Agreement and (ii) any SocialClimb delivered Updates, upgrades, enhancements, or modifications to the Software.
e. UPDATES. The term “Updates” means, as applicable, any update, correction, modification, enhancement, upgrade or new releases of the Licensed Deliverables that SocialClimb makes generally available to its clients.
LICENSE GRANT. SocialClimb hereby grants, and Licensee hereby accepts (on its own behalf and on behalf of each person who Licensee invites to use the Services (the “Authorized Users”), subject to the terms and conditions of this Agreement, a limited, non-exclusive, non-sublicensable, non-transferable, license during the term of this Agreement to use the Licensed Deliverables as set forth herein (the “License”). Licensee shall not have any rights to the Licensed Deliverables except as expressly granted in this Agreement. SocialClimb reserves to itself all rights to the Licensed Deliverables not expressly granted pursuant to this Agreement. The License granted hereunder shall include all Updates released by SocialClimb from time to time and SocialClimb is authorized to release all such Updates to Licensee’s account as they are released to other users of the Licensed Deliverables.
COPYRIGHT AND TITLE. The Licensed Deliverables and any copy thereof, in whole or in part, and all copyrights, trade secrets and other proprietary rights therein, including any Derivative Work are and will remain the sole property of SocialClimb, regardless of the use made by Licensee of the same and in any format; and are protected by certain United States and international copyright laws and trademark laws. The License confers no title of ownership in the Licensed Deliverables and is not a sale of any rights in the Licensed Deliverables. Licensee shall treat the Licensed Deliverables with at least the same standard of care as it treats any other material copyrighted and/or trademarked by a third party, in no case less than a reasonable standard of care. Licensee agrees not to, and to use best efforts to cause its customers or Authorized users not to, challenge SocialClimb’s ownership in or enforceability of SocialClimb’s rights in and to any Licensed Deliverable or any related information technology. Licensee shall not copy any of the Licensed Deliverables.
END-USER LICENSE AGREEMENT. Licensee acknowledges that each Authorized User will be required to enter into SocialClimb’s end-user license agreement upon accessing the Services governing their use of the Services. Licensee will promptly notify SocialClimb of any breach of an end-user license agreement by any Authorized User.
TERM, FEE AND PAYMENT. The initial term of the License granted herein shall commence on the date of first payment made by Licensee to SocialClimb and continue until expiration of the initial subscription term. At the end of each initial term and each renewal term (if any), the License shall automatically renew for subsequent one month terms, unless terminated in accordance with TERMINATION Section below. In consideration of the License granted herein, Licensee shall pay to SocialClimb the Fees set forth on the Payments page of Licensee’s SocialClimb Service Dashboard, which fees will be due and payable monthly prior to commencement of each subsequent monthly term. Unless otherwise set forth in the applicable Payments page of Licensee’s SocialClimb Service Dashboard, the fees for any subsequent term shall be at the then-current term price on an annualized basis unless SocialClimb notifies Licensee of a price change at least thirty days before the end of the then-current term, and shall be due at the commencement of such subsequent term. Licensee authorizes SocialClimb to make recurring charges to the credit/debit card listed in the Payments page of Licensee’s SocialClimb Service Dashboard and if necessary to initial adjustments for any transactions credited or debited in error. This authority will remain in effect until Licensee cancels this License through the Payments page of Licensee’s SocialClimb Service Dashboard or changes the method of payment through the Payments page of Licensee’s SocialClimb Service Dashboard, in which case this authorization will then apply to such new method of payment as set forth herein. All amounts payable hereunder by Licensee shall be payable in United States funds. Licensee agrees to pay any and all fees, assessments, and taxes associated with the amounts due under this Agreement. A finance charge shall be imposed on all account balances outstanding over 30 days. The finance charge is 1½% per month or the highest rate allowed under applicable law, whichever is lower. All payments under this Agreement are non-refundable. During the term of this Agreement and for three years thereafter, Licensee will keep current, complete, and accurate records regarding the reproduction, installation, and use of the Licensed Deliverables. Licensee will provide such information to SocialClimb and certify that it has paid all fees required under this Agreement within 15 business days of any written request, so long as no more than one request is made in any 12-month period. Licensee will, after reasonable prior notice from SocialClimb, provide SocialClimb and its representatives reasonable access to Licensee’s premises, records, and personnel so that SocialClimb may audit and confirm that Licensee complies with this Agreement. If an audit reveals any reproduction, installation, use, or distribution of the Software or any Licensed Deliverables that is not compliant with this Agreement, Licensee will promptly comply with this Agreement and make an additional payment as contemplated by this Agreement, plus interest at the rate specified in this Section. If the amount of the underpayment is 5% or greater, Licensee will promptly reimburse SocialClimb for its reasonable costs of conducting such audit.
ASSIGNMENT. Licensee shall not assign or otherwise transfer the License granted hereby or the rights granted hereunder without the prior written consent of SocialClimb, which shall be in SocialClimb’s absolute, complete and unqualified discretion. Any attempt to assign or otherwise transfer any of the rights, duties or obligations hereunder without compliance with this Section is and shall be void ab initio.
TRADE SECRETS. The Licensed Deliverables are trade secrets of SocialClimb and contain valuable proprietary products and trade secrets of SocialClimb, embodying substantial creative efforts and confidential information, ideas, and expressions. Licensee shall take appropriate action to protect the confidentiality of the Licensed Deliverables and the components and functions thereof. In furtherance of the foregoing, Licensee shall not permit access to the Licensed Deliverables or any portion thereof by any party who is not an Authorized User of the Licensed Deliverables. Licensee shall not modify, translate, disassemble, create Derivative Works based on, reverse-assemble, reverse-compile or otherwise reverse-engineer the Licensed Deliverables in whole or in part, or otherwise use, copy, reproduce or distribute any Licensed Deliverable except as expressly permitted hereunder. The provisions of this Section shall survive the termination of this Agreement.
CONFIDENTIALITY. All information that either party receives from the other that is marked “confidential” by the disclosing party (“Disclosing Party”) or that would reasonably be considered confidential by a party experienced in the industry ( “Confidential Information”) shall be kept confidential, and each party agrees to treat (and take precautions to ensure that its employees treat) the Confidential Information as confidential in accordance with the confidentiality requirements and conditions set forth below. Each party agrees, during the term hereof and for a period of five years thereafter, to keep confidential all Confidential Information disclosed to it by the other party in accordance herewith, and to protect the confidentiality thereof with at least the same standard of care with which it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable standard of care in the protection of Confidential Information); provided, however, that neither party shall have any such obligation with respect to the use or disclosure to third parties of such Confidential Information as can be established to: (a) have been known publicly; (b) have been known generally in the industry on a non-confidential basis before communication by the Disclosing Party to the recipient (“Recipient”); (c) have become known publicly; (d) have been known otherwise by the Recipient before communication by the Disclosing Party; (e) have been received by the Recipient without any obligation of confidentiality from a source (other than the Disclosing Party) lawfully having possession of such information. Except as prohibited by applicable law or legal process or to the extent part of an examination by a regulatory or self regulatory body, if the Recipient is requested or required (by deposition, interrogatories, requests for information or documents in legal proceedings, subpoenas, regulatory processes (including those of self-regulatory organizations), or similar process) in connection with any proceeding to disclose or otherwise becomes legally compelled to disclose any Confidential Information, the Recipient shall provide the Disclosing Party with prompt written notice and, if requested by the Disclosing Party after receipt of such notice, the Recipient shall provide Disclosing Party with reasonable assistance (subject to reimbursement by the Disclosing Party of all reasonable and out-of-pocket expenses incurred by the Recipient in providing such assistance) so as to enable the Disclosing Party to seek a protective order or other appropriate remedy or waive compliance with this Agreement. To the extent this Agreement applies, if such a protective order or other remedy is not obtained or if the Disclosing Party waives compliance with this Agreement, the Recipient may disclose Confidential Information, but only such Confidential Information as it is legally required to disclose in the reasonable opinion of counsel to the Recipient, and shall exercise reasonable efforts to obtain reliable assurance that confidential treatment will be accorded such Confidential Information disclosed. Licensee’s obligations under this paragraph will survive the termination of this Agreement or of any License granted under this Agreement for whatever reason.
OTHER RESTRICTIONS. Licensee may not rent, loan, license, market, or sell the Licensed Deliverables or copies thereof, in whole or in part, to any party. Licensee shall notify its employees and agents who may have access to the Licensed Deliverables of the restrictions contained in this Agreement and ensure their compliance with such restrictions.
TERMINATION. Either party may terminate this Agreement immediately and without further notice if the other party fails to cure any breach of any term or condition of this Agreement within 30 days after written notice of such breach. After the initial term of this Agreement, Licensee may terminate this Agreement, with or without cause, on 30 days’ notice. Upon any termination of this Agreement, Licensee shall cease all use of the Licensed Deliverables and destroy all copies of the Licensed Deliverables then in Licensee’s possession.
COMPLIANCE WITH LAWS. Licensee will comply with all applicable export and import control laws and regulations and obtain at its expense all necessary licenses, permits and regulatory approvals required by any and all governmental authorities in its use of the Licensed Deliverables and, in particular, Licensee will not export or re-export the Licensed Deliverables without SocialClimb’s prior written consent, and, if such consent is granted, without Licensee first obtaining all required United States and foreign government licenses. Licensee will also be responsible for ensuring that Licensee’s and each Authorized User’s use of the Licensed Deliverables and the Services, complies with all other applicable laws, including but not limited to the rules, policies and regulations of the Federal Communications Commission (FCC); the Telephone Consumer Protection Act of 1991 (TCPA); the Junk Fax Prevention Act of 2005; the Controlling the Assault of Non-Solicited Pornography And Marketing (CAN-SPAM) Act of 2003; the Health Insurance Portability and Accountability Act of 1996 (HIPAA); and all other federal, state, local and foreign laws relating to Do-Not-Call provisions; unsolicited marketing; unsolicited telephone calls, facsimiles, SMS or other messages; the use of automated telephone equipment to place certain calls; the placing of commercial messages; telemarketing; faxing; email marketing; spamming or phishing; data security or privacy; international communications; account or debt collection; recording of calls or conversations; export of technical or personal data; end user, end-use, and destination restrictions imposed by the United States and any foreign government; consumer protection; pornography; trade practices; false advertising; unfair competition; anti-discrimination; harassment; defamation; intellectual property; or securities. Licensee represents, warrants and covenants that all content, communications, files, information, data, and other content provided for transmission through the Licensed Deliverables or the Services will be provided solely for lawful purposes, and in no event shall any communications or any content thereof be in violation of any of the foregoing laws. Licensee further represents, warrants and covenants that it will (i) obtain prior express written consent from each customer, client or patient to whom communications are transmitted using the Licensed Deliverables or the Services to receive pre-recorded/artificial voice messages calls and/or use of an automatic dialing device, text messages and/or emails from the Authorized User, Licensee, SocialClimb and any of its subcontractors at any telephone number or email address provided by such customer, client or patient to Licensee, and (ii) immediately notify SocialClimb of any revocation of such consent. Notwithstanding anything to the contrary set forth herein, SocialClimb, at its sole option and discretion and without notice, may suspend Licensee’s or any Authorized User’s use of the Licensed Deliverables or the Services if it determines that Licensee or any Authorized User is in violation of any of the foregoing provisions. To the extent permitted by applicable law, Licensee will defend, indemnify, and hold harmless SocialClimb and its affiliates, directors, officers, managers, members, employees, contractors, agents and representatives from and against any losses, damages, liabilities, expenses (including reasonable attorneys’ fees), judgments and claims that arise out of or relate to any violation of such laws or regulations by Licensee, any Authorized User, or any of their respective officers, directors, managers, members, employees, agents or representatives.
DISCLAIMER OF WARRANTY. THE LICENSED DELIVERABLES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, ORAL, WRITTEN, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. LICENSEE BEARS ALL RISK RELATING TO QUALITY AND PERFORMANCE OF THE LICENSED MATERIALS AND TO THE ACCURACY AND USE OF THE INFORMATION. WITHOUT LIMITING THE FOREGOING, SOCIALCLIMB DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE LICENSED DELIVERABLES SHALL BE UNINTERRUPTED OR ERROR-FREE. Because some states may not allow the exclusion of implied warranties, such limitation may not apply in its entirety to Licensee. Any warranties made in this Agreement are for the benefit of Licensee only.
LIMITATION ON LIABILITY. IN NO EVENT WILL SOCIALCLIMB, ITS SUPPLIERS, MEMBERS, SHAREHOLDERS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY LOST PROFITS, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES DUE TO LOSS OF DATA OR GOODWILL, ARISING OUT OF THIS AGREEMENT OR THE USE OF OR RELIANCE UPON THE LICENSED DELIVERABLES OR INFORMATION, EVEN IF SOCIALCLIMB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SOCIALCLIMB BE LIABLE FOR PROCUREMENT COSTS OF SUBSTITUTE PRODUCTS OR SERVICES OR ANY UNAUTHORIZED USE OR MISUSE OF ANY LICENSED DELIVERABLES OR INFORMATION, EXCEPT IN THE CASE OF SOCIALCLIMB’S GROSS NEGLIGENCE WITH RESPECT TO SUCH USE OR MISUSE. LICENSEE ASSUMES RESPONSIBILITY FOR THE INSTALLATION, USE AND RESULTS OBTAINED FROM THE LICENSED DELIVERABLES. UNDER NO CIRCUMSTANCES WILL SOCIALCLIMB’S TOTAL LIABILITY OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY LICENSEE TO SOCIALCLIMB DURING THE IMMEDIATELY PRECEDING TWELVE MONTH PERIOD (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION). THE PARTIES AGREE THAT THIS SECTION SHALL SURVIVE AND CONTINUE IN FULL FORCE AND EFFECT DESPITE ANY FAILURE OF CONSIDERATION OR OF AN EXCLUSIVE REMEDY. THE PARTIES ACKNOWLEDGE THAT THE PRICES HAVE BEEN SET AND THE AGREEMENT ENTERED INTO IN RELIANCE UPON THESE LIMITATIONS OF LIABILITY AND THAT ALL SUCH LIMITATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. BECAUSE SOME STATES MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, SUCH LIMITATIONS MAY NOT APPLY TO LICENSEE.
GOVERNING LAW. This Agreement shall be governed by the laws of the State of Texas, U.S.A., without regards to any choice of laws provisions thereof.
REMEDIES. Licensee agrees that the obligations of Licensee provided herein are necessary and reasonable in order to protect SocialClimb and its business interests, and Licensee expressly agrees that monetary damages alone may be inadequate to compensate SocialClimb for any breach by Licensee of its covenants and agreements set forth herein. Accordingly, Licensee acknowledges that the unauthorized use, transfer, or disclosure of the Licensed Deliverables, or copies thereof will (a) substantially diminish the value to SocialClimb of the proprietary interest that are the subject of this Agreement; (b) render SocialClimb’s remedy at law for such unauthorized use, disclosure or transfer inadequate; and (c) cause irreparable injury in a short period of time. If Licensee breaches any of its obligations with respect to the use of the Licensed Deliverables, SocialClimb shall be entitled to equitable relief to protect its interest therein, including but not limited to, preliminary and permanent injunctive relief without requirement of a bond. For such purposes, the parties hereto agree to submit to the exclusive jurisdiction of the federal and state courts found within the State of Texas, and they do agree that venue shall be proper in the County of Travis in the State of Texas. In addition to any other remedies that may be available, in law, in equity or otherwise, SocialClimb shall be entitled to obtain injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by Licensee, without the necessity of proving actual damages.
ARBITRATION. Any controversy or claim arising out of or relating to this Agreement, including, without limitation, the making, performance, or interpretation of this Agreement, shall be settled by binding arbitration in Travis County, Texas, except any action for injunctive relief that may be brought pursuant to the terms of Section on REMEDIES. Unless otherwise agreed, the arbitration shall be conducted in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be held before three arbitrators, one arbitrator chosen by each of the parties and the third arbitrator chosen by the two arbitrators. Each of the arbitrators shall be chosen from a panel of attorneys knowledgeable in the field of business law in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association. The parties agree that the arbitrators shall have no jurisdiction to consider evidence with respect to or render an award or judgment for punitive damages (or any other amount awarded for the purpose of imposing a penalty) or any other damages inconsistent with the terms and provisions of this Agreement. The parties agree that all facts and other information relating to any arbitration arising under this Agreement shall be kept confidential to the fullest extent permitted by law. Any ruling rendered by the arbitrators shall be final and non-appealable and shall be enforceable in any court of competent jurisdiction.
ATTORNEY FEES. In case of arbitration or action to enforce any rights or conditions of this Agreement, or appeal from said proceeding, it is mutually agreed that the losing party in such suit, action, proceeding or appeal shall pay the prevailing party’s reasonable attorney fees and costs incurred.
ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the entire agreement and understanding of the parties, whether oral or written, relating to the subject matter hereof; are intended as the parties’ final expression and complete and exclusive statement of the terms hereof, superseding all prior or contemporaneous agreements, representations, communications, and understandings, whether written or oral; and may be amended or modified only by an instrument in writing or by SocialClimb by posting an amended agreement to Licensee’s SocialClimb Service Dashboard with prior notice of the effectiveness thereof.
NON-WAIVER. No waiver of any provision of this Agreement shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. Failure to enforce any provision of this Agreement shall not operate as a waiver of such provision or any other provision or of the right to enforce such provision or any other provision.
NO THIRD-PARTY BENEFICIARIES. Nothing in this Agreement, express or implied, is intended to confer on any person, other than the parties to this Agreement, any right or remedy of any nature whatsoever.
SEVERABILITY; BINDING EFFECT. If any provision of this Agreement shall be invalid or unenforceable in any respect for any reason, the validity and enforceability of any such provision in any other respect and of the remaining provisions of this Agreement shall not be in any way impaired. This Agreement shall be binding on and inure to the benefit of the parties and their heirs, personal representatives, successors, and, to the extent permitted by the Section on ASSIGNMENT.
FORCE MAJEURE. SocialClimb will not be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond SocialClimb’s reasonable control, so long as SocialClimb uses all commercially reasonable efforts to avoid or remove such causes of non-performance.
RELATIONSHIP OF PARTIES. Both parties agree that they are independent entities. Nothing in this Agreement shall be construed to create a partnership, joint venture, or agency relationship between the parties. Neither party shall have power or authority to obligate or bind the other party in any manner whatsoever, except as specifically provided herein. Each party is responsible for the supervision, management and direction of its own employees. Each party is responsible for the payment of compensation to its employees and for any injury to them occurring in the course of their employment for which their employer is responsible and neither party shall be responsible for the supervision, management and direction of the employees of the other party.
NOTICES. All notices, consents, and other communications permitted or required to be given hereunder (“Notice”) shall be delivered by electronic mail to SocialClimb at [email protected] and to Licensee at the electronic mail address set forth on the Payments page of Licensee’s SocialClimb Service Dashboard. Any party may change its email address for notification purposes by giving the other party notice of the new email address and the date upon which it will become effective in accordance with the terms of this Section.
INDEMNIFICATION. In addition to any other indemnification obligations contained herein, Licensee shall indemnify, defend and hold harmless SocialClimb and its affiliates, directors, officers, managers, members, employees, contractors, agents and representatives from and against any losses, damages, liabilities, expenses (including reasonable attorneys’ fees), judgments and claims that arise out of or relate to (a) any breach by Licensee of any representation, warranty or covenant of Licensee contained in this Agreement and (b) Licensee’s or any Authorized User’s use of the Licensed Deliverables or the Services. SocialClimb will: (a) give Licensee prompt written notice of the claim; (b) grant Licensee full and complete control over the defense and settlement of the claim; (c) assist Licensee with the defense and settlement of the claim as Licensee may reasonably request and at Licensee’s expense; and (d) comply with any settlement or court order made in connection with the claim.
USE OF LICENSEE NAME. SocialClimb may identify Licensee in SocialClimb advertising and marketing materials. Licensee hereby grants SocialClimb a non-exclusive right to use Licensee’s trademarks, logos, and other materials provided by Licensee to SocialClimb for this purpose.
MUTUAL WARRANTIES. Each party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement; and (c) the execution, delivery, and performance of this Agreement does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.