SCHEDULE A GENERAL TERMS AND CONDITIONS

Transcription

1 SCHEDULE A GENERAL TERMS AND CONDITIONS Subject to the terms and conditions of this Agreement Sysomos will provide Customer with those social media monitoring and analytics services, and other related social communications services, all as set out in one or more Schedule Z Order Forms (the Services ). This Schedule A applies to the provision by Sysomos of any and all Services under this Agreement. 1. DEFINITIONS As used throughout this Agreement, the following shall have the meanings set forth below unless otherwise indicate: Authorized Users means one or more individuals who have been authorized by Customer to use the Services on behalf of Customer. Customer Data means all data or information submitted or posted by Customer to the Services, including but not limited to search terms, queries, and/or or report parameters, as applicable. Due Date means the date by which any Sysomos invoice is due, as set out in the applicable Product Schedule or Order Form. Feedback means any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Authorized Users to Sysomos relating to the Sysomos Products or the operation of the Services. Fees means the fees for the Services, as set out in the applicable Schedule Z - Order Form. Intellectual Property Rights means: any and all proprietary rights provided under: (i) patent law; (ii) copyright law; (iii) trade-mark law; (iv) design patent or industrial design law; (v) semi-conductor chip or mask work law; or (vi) any other applicable statutory provision or common law principle, including trade secret law, which may provide a right in either ideas, formulae, algorithms, concepts, systems, methods, improvements, inventions or know-how generally, or the expression or use of such ideas, formulae, algorithms, concepts, systems, methods, improvements, inventions or knowhow; and any and all applications, registrations, licenses, sublicenses, agreements or any other evidence of a right in any of the foregoing. Malicious Code means any disabling devices, viruses, trojan horses, trap doors, back doors, Easter eggs, time bombs, cancelbots, or other computer programming routines designed to damage, detrimentally interfere with, surreptitiously intercept or expropriate any other software or data. Personal Data means any information that pertains to a specific individual and that can be linked to such individual. Software means any software programs included in a Sysomos Product. Sysomos Products means all computer programs, tutorials and related documentation made available, whether directly or indirectly, by Sysomos to Customer as part of the Services. Taxes means any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes. Third Party Content means any information (such as user ids, user-generated content, data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images available on the Internet) which Customer may have access to as part of, or through use of, the Services. Third Party Webpages means any web pages or servers that are not owned or controlled by Sysomos which Customer may have access to as part of, or through use of, the Services, whether through links or otherwise. 2. AUTHORIZED USERS; USE OF SERVICES A. Each Authorized User shall select a unique user identification name ( Userid ) and password. This enables Authorized Users to access the Services at any time during the Term, by use of their Internet browser. Unless otherwise specified in a specific Product Schedule, neither Customer nor its Authorized Users need to install any software to use the Services. Sysomos will only store Authorized Users passwords in encrypted form; they will not be readable by Sysomos personnel. Authorized Users must protect their Userids and passwords, and not make them available to persons or entities not authorized to use the Services on behalf of Customer. B. Customer is responsible for all activities that occur in Authorized User accounts and for Authorized Users' compliance with this Agreement. Customer acknowledges and understands that Sysomos may suspend an Authorized User s access to any particular feature or Service if Sysomos has reason to believe that such Authorized User has violated the applicable terms of use set forth in this Agreement. C. Customer shall: (i) prevent unauthorized access to, or use of, the Services, and notify Sysomos promptly of any such unauthorized access or use; (ii) comply with all applicable local, provincial, federal and foreign laws in using the Services; and (iii) use the Services only for purposes that are permitted by this Agreement. Customer agrees to keep its connection to the Sysomos systems secure and shall immediately notify Sysomos in writing upon becoming aware of any breach of security relating to Customer s account with Sysomos. 3. ORDER FORMS, FEES AND PAYMENT; NEW SERVICES A. Order Forms. Customer shall order the Services by completing and signing a Schedule Z - Order Form (hereinafter referred to as either an Order Form or as a Schedule Z Order Form ). Each accepted, fully executed Order Form shall be incorporated by reference into this Agreement as successive schedules to this Agreement. In the event that Customer requires a purchase order number issued prior to payment of any Sysomos invoices issued pursuant to the applicable Order Form, then such purchase order number must be provided to Sysomos prior to the activation of the Services. Customer s execution and return of the applicable Order Form to Sysomos without designating a purchase order number is deemed an acknowledgment that no purchase order is required for payment of invoices hereunder. Terms, provisions or conditions on any purchase order, if any, together with any acknowledgments or other business processes, forms or writing that Customer may use or require in

2 connection with the provision of the Services from Sysomos are of no force and effect and will have no effect on the rights, duties and obligations of the Parties hereunder, regardless of any failure of Sysomos to object to such matters. If Sysomos performs Services before the Effective Date, all Services provided by Sysomos before that date will be considered to have been provided under all of the terms and conditions of this Agreement. B. Customer agrees to pay the Fees set out in the Order Form(s). Payment for the Fees is due without withholding, deduction or setoff of any amounts for any purpose. Customer shall pay any additional charges that Sysomos incurs as a result of Customer s method of payment. C. If Customer's account remains unpaid after the Due Date, in addition to any of its other rights or remedies contained in this Agreement, Sysomos reserves the right, upon notice to Customer, to suspend the Services provided to Customer, until such amounts are paid in full. Customer shall reimburse Sysomos for the reasonable costs of collection of any Fees outstanding after the Due Data, including reasonable fees and expenses of attorneys. D. Unless otherwise stated, Sysomos fees do not include any Taxes. Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on Sysomos net income or property. If Sysomos has the legal obligation to pay or collect taxes for which Customer is responsible, Sysomos shall include on the applicable invoice separate line items indicating the appropriate amount of such Taxes which shall be paid by Customer unless Customer provides Sysomos with a valid applicable tax exemption certificate. E. If Customer requests Sysomos to perform any services that are different from or in addition to the Services ( New Services ) and Sysomos is willing to provide such New Services, then Sysomos shall provide a written quote to Customer listing the fees for such requested New Services ( New Services Fees ). New Services requested by Customer may include: (i) additional remote training, or onsite training, in use of the Services; (ii) modifications or enhancements of the Services to allow the Services to perform additional functions; (iii) support for problems determined by Sysomos not to be related to the Services; or (iv) support outside of Sysomos standard hours of coverage. Such New Services may be provided by Sysomos if the Parties mutually agree upon an Order Form for the New Services which references this Agreement. 4. INTELLECTUAL PROPERTY A. All Sysomos Products are the exclusive property of Sysomos and/or its licensors. All rights, title and interest in or to any Intellectual Property Rights relating to the Sysomos Products and the related logos, product names, etc. are reserved. A personal, non-exclusive, non-transferable right and license is being granted to Customer, solely for Customer s own internal business purposes, to use any Software made available to Customer as part of the Services. Customer shall not have any interest in the Software, except for the license granted to Customer under this Agreement. Customer will not make any alteration, change or modification to any of the Sysomos Products, including the Software used by Sysomos in connection with providing the Services to Customer. Any Feedback provided by Customer, including, in each case all Intellectual Property Rights therein or relating thereto, are and shall remain the exclusive property of Sysomos or its licensors. Customer hereby assigns to Sysomos all of its right, title, and interest in and to any Feedback, including all Intellectual Property Rights therein or relating thereto. B. All right, title and interest in and to the Customer Data and all related Intellectual Property Rights, modifications and additions thereto shall at all times remain with Customer. Customer grants Sysomos a limited license, during the Term, to use and display Customer Data within the Software solely to permit Customer to access the Services by way of login by Authorized Users or as required for Sysomos to provide the Services. Sysomos shall use commercially reasonable efforts to maintain the security and integrity of Customer Data C. Customer shall not, and shall not allow third parties to: (i) license, sublicense, lease, rent, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services in any way unless such third parties are working on behalf of Customer as contractors or consultants and have been authorized by Customer to use the Services; (ii) access (or attempt to access) any of the Services by any means other than through the Userid that is provided by Sysomos; (iii) modify or make derivative works based upon the Services except as may be expressly specified in the applicable Product Schedule; (vi) access (or attempt to access) the Services through any automated means (including use of scripts or web crawlers) unless expressly specified in the applicable Product Schedule; (v) use the Services as a service bureau or to provide a service directly or indirectly to third parties, including, without limitation, for the creation or manipulation of data to be sent to a third party or for the processing of data provided by a third party; (vi) reverse engineer, adapt, translate, decompile, or otherwise derive the source code for the Services or access the Services in order to copy or imitate any ideas or features, or build a product or service similar to the Services, or use similar features, software, functions or graphics as those of the Services, whether or not intended to compete with the Services; or (vii) access the Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purpose. Sysomos expressly reserves all rights in connection with its Intellectual Property Rights, including without limitation the right to block the transfer of the Sysomos Products and the Services and/or to track usage thereof, through electronic tracking technology, and all other lawful means, now known or hereafter devised. 5. WARRANTIES; DISCLAIMER A. Sysomos represents and warrants that on an ongoing basis, (a) the Services will be performed using reasonable care and skill and in accordance with this Agreement; and (b) that the functionality of the Services will not be materially decreased during the initial term of an Order Form. B. EXCEPT AS EXPRESSLY STATED HEREIN, SYSOMOS SHALL HAVE NO RESPONSIBILITY FOR, AND DOES NOT WARRANT AGAINST, ANY PROBLEMS THAT OCCUR AS A RESULT OF IMPROPER USE OF THE SERVICES; ANY WORK PRODUCT, USE OF THE SERVICES WITH INCOMPATIBLE EQUIPMENT, INTERFACES, REQUIREMENTS OR SPECIFICATIONS; USE OF THE SERVICES WITH OTHER PRODUCTS (HARDWARE, SOFTWARE, FIRMWARE, ETC.) THAT DOES NOT PROPERLY EXCHANGE DATA WITH THE SERVICES, OR USE OF THE SERVICES OTHER THAN IN ACCORDANCE WITH SYSOMOS INSTRUCTIONS GIVEN FROM TIME TO TIME. NO OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE MADE WITH RESPECT TO THE PRODUCTS OR SERVICES SUPPLIED BY SYSOMOS, Page 2 of 5

3 INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EXCEPT IN THOSE JURISDICTIONS WHERE SUCH WARRANTIES MAY NOT BE EXCLUDED BY OPERATION OF LAW. 6. LIMITATION OF LIABILITY A. Neither Sysomos nor its affiliates shall be liable in any way for indirect, incidental, consequential, special or exemplary damages, punitive damages or penalties (even if Sysomos has been advised of the possibility of such damages or penalties), arising out of this Agreement, including but not limited to, loss of revenue, change in share price, loss of anticipated profits or lost business. This limitation of liability applies to any damages or penalties, including without limitation those caused by any failure of performance, error, omission, interruption, delay in operation or transmission, whether for breach of contract, tortious conduct, acts or omissions, negligence, or under any other claim or cause of action. B. IN NO EVENT SHALL SYSOMOS AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER IN THE SIX MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. C. Sysomos agrees to defend Customer against any claim, demand, suit, or proceeding made or brought against Customer by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the Intellectual Property Rights of a third party under the laws of the United States, Canada or England and Wales (an "Infringement Claim"), and shall indemnify Customer for any damages and attorney fees and costs finally awarded against Customer as a result of, and for amounts paid by Customer under a court-approved settlement of, an Infringement Claim; provided that Customer (a) promptly gives Sysomos written notice of the Infringement Claim; (b) gives Sysomos sole control of the defense and settlement of the Infringement Claim (provided that Sysomos may not settle any Infringement Claim unless the settlement unconditionally releases Customer of all liability); and (c) provides to Sysomos all reasonable assistance, at Sysomos expense. In the event of an Infringement Claim, or if Sysomos reasonably believes the Services may infringe or misappropriate, Sysomos may in its discretion and at no cost to Customer (i) modify the Services so that they no longer infringe or misappropriate, (ii) obtain a license for Customer s continued use of the Services in accordance with this Agreement, or (iii) terminate the applicable Order Form for such Services upon written notice and refund to Customer any prepaid Fees covering the remainder of the term of such Order Forms after the effective date of termination. For greater clarity, this indemnity does not apply to Infringement Claims resulting from or arising out of Client Data, Third Party Content or Third Party Webpages. This section 6C. states Sysomos sole liability to, and Customer s exclusive remedy, in respect of any Infringement Claim. D. Customer agrees to defend Sysomos and its affiliates against any claim, demand, suit, or proceeding made or brought against Sysomos or any Sysomos affiliate by a third party arising out of or in connection with Client Date or any use of the Services in violation of this Agreement, and shall indemnify Sysomos and its affiliates for any damages, attorney fees and costs finally awarded against Sysomos or any of its affiliates as a result of, and for amounts paid by Sysomos or any affiliate under a court-approved settlement of, such claim, demand, suit or proceeding; provided that Sysomos (a) promptly gives Customer written notice of the claim, demand, suit or proceeding; (b) gives Customer sole control of the defense and settlement of the claim, demand, suit or proceeding (provided that Customer may not settle any claim, demand, suit or proceeding unless the settlement unconditionally releases Sysomos and its affiliates of all liability); and (c) provides to Customer all reasonable assistance, at Customer s expense. 7. CONFIDENTIALITY A. By virtue of this Agreement and the Services, the Parties may have access to information that is proprietary or confidential to one another, including the terms and pricing under this Agreement ( Confidential Information ). Each Party (i) shall, and shall cause its personnel to, hold and deal with in strict confidentiality all Confidential Information of the other Party disclosed under this Agreement or under any Order Form; and (ii) agrees not to use any of the Confidential Information except in the furtherance of its obligations under this Agreement, provided that each Party acknowledges that, for the purposes hereof, its respective Confidential Information excludes any data, documentation or other information which (a) is in the public domain other than as a result of a disclosure by the receiving Party in breach of this Agreement; (b) was known to the receiving Party prior to receipt thereof from the disclosing Party; (c) is or becomes available to the receiving Party on a non-confidential basis from a source other than the disclosing Party, if that source or its source is not in breach of any obligation of confidentiality to the disclosing Party; (d) the receiving Party can show to have been developed independently by the receiving Party without using the Confidential Information of the disclosing Party; or (e) must be disclosed pursuant to applicable laws, regulations or court order, provided that if permitted by law, the receiving Party gives the disclosing Party prompt notice of its intent to disclose such information so that the disclosing Party may seek a protective order or other appropriate remedy or waive compliance with these terms. If such protective order or other remedy is not or cannot be obtained, or the disclosing Party waives compliance with these terms, the receiving Party will furnish only that portion of the Confidential Information that is legally required and will exercise its best efforts to obtain reliable assurances that the Confidential Information will be treated on a confidential basis. Upon request, at the expiration of this Agreement, each Party shall return or destroy all Confidential Information of the other Party then in its possession. B. Notwithstanding the foregoing, Sysomos may, in its own marketing materials, including but not limited to the Sysomos website, refer by names and logos to Customer, unless Customer specifically prohibits Sysomos from doing so. Page 3 of 5

4 8. TERM AND TERMINATION A. Unless earlier terminated as provided herein, this Agreement commences on the Effective Date, or the date on which Customer starts using the Services, whichever is earlier and continues until all Order Forms for Services granted in accordance with this Agreement have expired or been terminated. Unless earlier terminated as provided herein, the initial term of each Order Form shall be for the period set out on the applicable Order Form (the Initial Term ). Unless terminated as described in Section 8B, upon expiration of the Initial Term, each Order Form will renew automatically for subsequent renewal terms of equal duration to the Initial Term (each a Renewal Term, and together with the Initial Term, the Term ), unless either Party notifies the other Party of its intention to not renew the Order Form at least 60 days prior to the end of the Term. B. Any Order Form may be terminated by either Party (i) if the other Party materially defaults with respect to a material obligation under this Agreement and does not remedy that default within 30 days after receiving written notice of the default, or (ii) immediately upon the other Party s bankruptcy (voluntary or involuntary), insolvency or assignment for the benefit of its creditors, or the appointment of a receiver for all or substantial part of its assets. Notwithstanding the foregoing, in cases where the default pertains to Customer s failure to pay any invoiced Fees or Taxes by the Due Date, Sysomos shall be entitled to terminate the applicable Order Form if Customer does not remedy that default within 10 days after receiving written notice of the default. C. Upon termination of an Order Form in accordance with this Section 8, (i) Customer will promptly pay all Fees payable to Sysomos in respect of Services provided under such Order Form through the date of termination, (ii) Customer s and Authorized Users right to use and access the Services set out in the terminated Order Form immediately ceases; and (iii) Sysomos has no obligation to maintain any Customer information or to forward any Customer information to Customer, any Authorized User or any third party. 9. GOVERNING LAW AND JURISDICTION A. If the Customer billing address referenced on the cover page of this Agreement is located in the United States: (i) This Agreement will be governed by the laws of the State of New York, excluding its rules regarding conflicts of law; and (ii) Venue for any dispute hereunder shall be a court of competent jurisdiction located in New York, New York, and the parties irrevocably submit to the exclusive jurisdiction of such courts. B. If the Customer billing address referenced on the cover page of this Agreement is located in the United Kingdom: (i) This Agreement will be governed by the laws of England and Wales, excluding its rules regarding conflicts of law; and (ii) Venue for any dispute hereunder shall be a court of competent jurisdiction located in London, England, and the parties irrevocably submit to the exclusive jurisdiction of such courts. C. If the Customer billing address referenced on the cover page of this Agreement is located in Canada or in a region other than those set out in 9A and 9B above: (i) This Agreement will be governed by the laws of the Province of Ontario, excluding its rules regarding conflicts of law; and (ii) Venue for any dispute hereunder shall be a court of competent jurisdiction located in the City of Toronto, in the Province of Ontario and the parties irrevocably submit to the exclusive jurisdiction of such courts. D. Each party waives any right to jury trial in connection with any action or ligation in any way arising out of or related to this Agreement. The prevailing party in any dispute arising out of or related to this Agreement will be entitled to be reimbursed for all incurred reasonable legal costs and expenses. 10. GENERAL PROVISIONS A. This Agreement constitutes the entire agreement between the Parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Twitter International Company is a third-party beneficiary of this Agreement to the extent necessary to enforce the Twitter privacy policy, the Twitter Terms of Service and the Twitter Rules, links to which are contained in the Services. Except for the foregoing, there are no other third party beneficiaries of this Agreement. This Agreement shall not be modified except by a writing signed by Sysomos and Customer and in furtherance of such principle, any additional or conflicting terms contained in communications from one party to the other hereafter, whether in the form of acknowledgements, order confirmations, invoices or otherwise, shall be inapplicable unless specifically agreed to in writing by the recipient party. Headings in this Agreement are for convenience only and do not affect interpretation of this Agreement. B. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) the second business day after sending by confirmed facsimile; or (iv) the second business day after sending by . The address for notice for Customer shall be the Customer Address shown on the cover page unless Customer provides a separate address for notices; for Sysomos: 25 York Street, Suite 900, Toronto, ON, Canada M5J 2V5, Attention: Legal Department; Phone: ; C. Customer shall not assign its rights and obligations under this Agreement without the prior written consent of Sysomos. Notwithstanding the foregoing, either Party may assign this Agreement, or any of its rights and obligations under this Agreement to its parent company, successor, or any affiliate upon written notice to the other Party, provided such assigning Party shall remain liable to the non-assigning Party for the assigning Party's obligations under this Agreement. D. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, such provision shall be modified to the extent necessary to make it valid, legal and enforceable whilst preserving the intent of the Parties. Page 4 of 5

5 E. The provisions of this Agreement, which by their nature or express terms would survive termination or expiration of this Agreement, shall survive any termination or expiration, including without limitation Sections 4, 6, 7, 88.C, 9 and 10 of this Schedule A. F. Each Party will be excused from performance for any period of time that it is prevented from performing its obligations hereunder as a result of an act of God, war, earthquake, epidemic, terrorism, threat of terrorism, civil disobedience, court order, labor dispute, Internet service provider failures or delays, or denial of service attacks, or other cause beyond the Party s reasonable control. G. Each Party warrants that it is an existing legal entity, and that its full legal name is correctly set out above its signature to this Agreement. If applicable, all references to Customer in this Agreement shall include all affiliates, subsidiaries and/or the parent company of the legal entity executing this Agreement, to the extent that such other entities are receiving Services pursuant to this Agreement. Any breach, directly or indirectly, of the terms of this Agreement, including any Order Form, by a Customer affiliate receiving Services pursuant to this Agreement, shall be deemed to be a breach by Customer. H. The Parties agree to accept facsimile, scanned, electronic, or copied signatures as original signatures for the purposes of executing this Agreement (including any Order Form). The Parties further agree to accept copied, scanned, electronic, or printed fully executed versions of this Agreement (including any Order Form) as if they were originals. Page 5 of 5