ssnapp™ CUSTOMER TERMS & CONDITIONS (web version)

1.These Customer Terms and Conditions ("Terms") apply to (a) the use of the ssnapp system located at www.ssnapp.com  or www.ssnapp.us and all associated sites linked to it by Social Media Gateways, Inc. ("ssnapp") and (b) the ssnapp social media campaign management services (the "Services") provided on or through the Site or through any ssnapp widget on a third party site ("Widgets").  The ssnapp, the Services, and all Widgets are the property of Social Media Gateways, Inc., a Delaware corporation, its subsidiaries, and affiliates ("SMG"). BY USING THE SITE, THE SERVICES, AND ANY WIDGETS, YOU AGREE TO THESE TERMS OF USE; IF YOU DO NOT AGREE, DO NOT USE THE SITE, THE SERVICES, OR ANY WIDGET(S).

2.SMG reserves the right, at its sole discretion, to change, add or remove portions of these Terms, at any time. It is your responsibility to check these Terms each time before using the Site. Your continued use of the Site following the posting of changes will mean that you accept and agree to the changes. As long as you comply with these Terms and any such modifications, SMG grants to you a personal, non-exclusive, non-transferable, non-sublicensable, limited privilege to use the Site, Services and Widget(s) solely in accordance with these Terms.  BY CREATING AN ACCOUNT AND/OR LOGGING IN, YOU (A) AGREE TO THE CUSTOMER TERMS AND CONDITIONS IN EFFECT AT THE TIME YOU CREATE THE ACCOUNT OR LOG IN, AS APPLICABLE.

3.This ssnapp Customer Terms & Conditions combined with one or more current ssnapp Subscription Orders (“Order”) combine to form the overall ssnapp Subscription Agreement (“Agreement” or “Subscription Agreement”) that governs the provision of products and services by SMG to Client and the Client’s terms of that use.

  1. 1.Access To ssnapp 
    1. 1.1.Right to Access. 

Subject to the terms and conditions of the Subscription Agreement, SMG will provide to Client access to ssnapp for the sole purpose of enabling Client to conduct and administer social marketing Campaigns.  ssnapp shall be available to Client in accordance with the service levels described In Section 8.15.

    1. 1.2.Content. 

SMG shall have the right to use any content that Client provides, generates, transfers or makes available to SMG using ssnapp or otherwise under the Subscription Agreement, whether printed, electronic, or in some other format (the “Client Content”) for any Campaign as contemplated by the Agreement.  SMG shall have the right to use the Client Content and shall have the right to distribute to, and display on, any media or device, the Client Content using any media or electronic communication or telecommunication technology.  Client understands that because Client Content is used on a social network, SMG has no control over any use, modification, redistribution, or other disposal of any Client Content once the Client Content is posted or control over any content produced or distributed by third parties in connection with the Client Content.  Accordingly, and except for any claims arising out of SMG’s breach of the Agreement, Client waives any claims against SMG, and releases SMG from and against any liability, arising out of any posting, use, modification, redistribution or other disposal of any of the Client Content.  Client must insure that all Client Content produced by Client must be suitable for distribution on social media networks typically used for distributing information concerning Client and its goods and services, and must comply with the terms of use set forth on such networks.

    1. 1.3.Revisions to ssnapp. 

SMG may periodically modify the features, components and functionality of ssnapp from time to time.  SMG shall have no liability for, or any obligations due to, any changes in ssnapp, or in Client’s hardware, systems or other software which may be necessary to use or access ssnapp due to a modification of ssnapp provided by SMG.  

  1. 2.SUPPORT SERVICES  

Subject to Client’s timely payment of the applicable Subscription Fees set forth in any Order currently in force, SMG will provide to Client the support services described in the then-current SMG Support Policies Handbook or equivalent document, and the exercise of commercially reasonable efforts to resolve any failure of ssnapp that is reported by Client to and replicable by SMG (the “Support Services”) during the Term specified in the Agreement.  Support starts on the date of the Subscription Agreement and continues until terminated. Support Services do not include implementation, training, or other Professional Services, which are billed separately.

  1. 3.CONFIDENTIALITY  
    1. 3.1.Defined.  

By virtue of the Subscription Agreement, the parties may be exposed to or be provided with certain confidential and proprietary information of the other party or third parties including, without limitation, information designated as confidential in writing or information which a reasonable person would in good faith consider to be confidential and proprietary to the disclosing party (“Confidential Information”).  Confidential Information of SMG and/or its licensors includes, without limitation, the terms and conditions (but not the existence) of the Subscription Agreement, any documentation delivered by SMG to Client, specifications, diagrams, schematics, pricing, business plans, customer lists and customer-related information, financial information, proposals, all trade secrets, testing and benchmarking of ssnapp, product roadmap, data and other information of SMG and its licensors relating to or embodied in ssnapp or any documentation delivered by SMG to Client.

    1. 3.2.Non-Disclosure.  

Each party will protect, and will ensure that its employees, agents and contractors will protect, the other party’s Confidential Information from unauthorized use or dissemination and use the same degree of care that each such party uses to protect its own Confidential Information, but in no event less than reasonable care.  Neither party will use Confidential Information of the other party for purposes other than necessary to directly further the purposes of the Subscription Agreement or allow access to, provide, divulge, or make available Confidential Information to any individual other than a party’s employees and individual contractors who are not competitors of the other party, who have a need to such access to perform their obligations to a party, and who shall be bound by a nondisclosure agreement with provisions that are at least as restrictive as the terms of the Agreement.  

    1. 3.3.Exceptions.  

Information shall not be considered Confidential Information to the extent, but only to the extent, that the disclosing party can establish that such information (i) is or becomes generally known or available to the public through no fault of the receiving party; (ii) was rightfully in the receiving party's possession before receipt from the disclosing party; (iii) is lawfully obtained from a third party who has the express right to make such disclosure; or (iv) has been independently learned or developed by one party without reference to or use of any Confidential Information of the other.  Either party may disclose the terms of the Agreement to any of its advisors, potential successors, or potential purchasers of its business or of its stock not intended for issuance to the public, if the recipient is under an obligation of confidentiality.  

    1. 3.4.Compelled Disclosure.   

3.1.The receiving party may disclose Confidential Information of the disclosing party if it is compelled by law to do so; provided that the Recipient first notifies the Discloser (to the extent legally permitted) and gives it the opportunity to seek a protective order or similar administrative remedy, or to contest such required disclosure.  

  1. 4.LIMITED RIGHTS AND OWNERSHIP  
    1. 4.1.Reservation of Rights.   

All rights not expressly granted in the Subscription Agreement are reserved by SMG and its licensors, and no rights shall arise in Client by implication, estoppel, or otherwise.  Client acknowledges that: (i) Client has no right to ssnapp, or any intellectual property, Confidential Information, or nonpublic documentation pertaining to ssnapp or SMG (collectively, the “Protected Materials”) except to access them as specifically set forth in the Agreement; (ii) SMG and its licensors retain sole and exclusive ownership of any and all right, title, and interest in and to the Protected Materials including, without limitation, intellectual property embodied or associated with the Protected Materials, deliverables and work product associated with the Protected Materials, and all copies and derivative works thereof.  Client shall reimburse SMG for any and all expenses that SMG may incur (including interest, attorneys’ fees and other legal expenses) in connection with SMG’s efforts to enforce its rights against Client with respect to the Protected Materials, or any of SMG’s intellectual property rights, in the event SMG prevails in such enforcement efforts.  

    1. 4.2.Feedback and Intellectual Property. 

Except for any Client Content, as against Client, SMG shall own all intellectual property, and all data generated, in connection with the use of ssnapp.  As against Client, SMG owns, and SMG shall own, all feedback it receives from Client regarding ssnapp or SMG’s technology.  By way of illustration and not limitation, feedback shall include any comments regarding operation of, or enhancements or revisions to, ssnapp or SMG’s technology.  

    1. 4.3.Restrictions.  

Client shall not itself, or through any affiliate, employee, consultant, contractor, agent or other third party: (i) sell, resell, distribute, host, lease, rent, license or sublicense, in whole or in part, the Protected Materials or access to ssnapp; (ii) decipher, decompile, disassemble, reverse assemble, reverse engineer, or otherwise attempt to derive source code, algorithms, tags, specifications, architecture, structure or other elements of ssnapp, in whole or in part (except to the extent expressly permitted by applicable law, notwithstanding a contractual obligation to the contrary, and except for third party software which may otherwise be available in source code form); (iii) write or develop any derivative works based upon any of the Protected Materials or ssnapp; (iv) modify, adapt, translate or otherwise make any changes to any of the Protected Materials or any part thereof; (v) use any of the Protected Materials to provide promotional services to third parties, or otherwise use the same on a “service bureau” basis; (vi) disclose or publish, without SMG’s prior written consent, performance or capacity statistics or the results of any benchmark test performed on the Protected Materials; or (vii) otherwise use or copy any of the Protected Materials except as expressly permitted herein.

    1. 4.4.Data.   

Under its agreements with end user members of its ssnapp network (the “ssnapp Members”), and as disclosed in its privacy policy, SMG claims certain rights to data that is provided by ssnapp Members (the “Independent Data”).  Client agrees that the Independent Data shall remain with SMG, and that Client shall have no right to any Independent Data even if identical data has been provided by Client with respect to an individual ssnapp Member. In addition, Client understands that SMG may collect from Clients data regarding the manner in which the Client uses ssnapp and in which ssnapp operates in various social media networks (the “Usage Data”) to enhance the functionality of ssnapp and other services for all of its clients, and to develop new products and services.  SMG has sole and exclusive ownership of and all right, title, and interest in the Usage Data.

    1. 4.5.Enforcement.   

Client shall (a) ensure that all users of Protected Materials comply with the terms and conditions of the Subscription Agreement, (b) promptly notify SMG of any actual or suspected violation thereof; and (c) cooperate with SMG in any investigation and/or enforcement of the Subscription Agreement.

    1. 4.6.No Copying.  

Unless otherwise specified herein, Client may not copy or reproduce the Protected Materials in any manner or for any purpose. SMG and its licensors’ proprietary notices, including without limitation patent, copyright and trademark notices, and disclaimer notices, must be reproduced on any authorized copies of the Protected Materials.

  1. 5.INDEMNIFICATION   
    1. 5.1.Client Indemnification.  

Client shall defend or settle, at its option and expense, any action, suit, or proceeding made or brought against SMG and its affiliates by any third party arising out of or related to (i) any content provided by Client or any third party on behalf of Client, or (ii) Client’s use of ssnapp other than pursuant to the Subscription Agreement.  Client shall defend, indemnify, and hold harmless SMG and its affiliates against all damages and costs finally awarded or those costs and damages agreed to in a monetary settlement of such action, which are attributable solely to such claim, provided that SMG:  (a) promptly gives Client written notice of the claim, (b) gives Client sole control of the defense and settlement of the claim (provided that Client may not settle or defend any Claim unless it unconditionally releases the Indemnified Party of all liability), and (c) provides Client all reasonable assistance, at Client’s cost.

  1. 6.DISCLAIMERS AND LIMITATION OF LIABILITY   
    1. 6.1.No Warranty. 

SSNAPP AND THE SERVICES PROVIDED BY SMG IN CONNECTION WITH THE AGREEMENT ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, ORAL OR WRITTEN INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, TRADE PRACTICE, OR CONDUCT.

    1. 6.2.Liability Limitation. 

SMG’S TOTAL LIABILITY (INCLUDING ATTORNEYS FEES AWARDED UNDER THE SUBSCRIPTION AGREEMENT) TO CLIENT FOR ANY CLAIM BY CLIENT OR ANY THIRD PARTIES ARISING OUT OF OR RELATING TO THE SUBSCRIPTION AGREEMENT WILL BE LIMITED TO THE FEES PAID BY CLIENT FOR THE ONE YEAR PERIOD IMMEDIATELY PRIOR TO THE DATE ON WHICH THE CLAIM OCCURRED, OR, IF THE ORDER TERMS INDICATE A MONTHLY PAYMENT, FOR TWELVE TIMES THE MONTHLY PERIOD DURING WHICH THE CLAIM OCCURRED.  SMG’S SOLE LIABILITY ARISING OUT OF SMG’S INABILITY TO MAKE SSNAPP AVAILABLE AS DESCRIBED IN EXHIBIT A OF THE SUBSCRIPTION AGREEMENT SHALL BE THE CREDITS SET FORTH IN SUCH EXHIBIT.

    1. 6.3.Disclaimer. 

IN NO EVENT WILL SMG BE LIABLE TO CLIENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, TREBLE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, STAFF TIME, GOODWILL, USE, DATA, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR RELATING TO THE SUBSCRIPTION AGREEMENT, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, WHETHER OR NOT SMG HAS PREVIOUSLY BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  

    1. 6.4.Claim Limitation. 

NO CLAIM ARISING OUT OF THE SUBSCRIPTION AGREEMENT, REGARDLESS OF FORM, MAY BE BROUGHT AFTER THE SHORTER OF ONE YEAR OR THE PERIOD ALLOWED BY LAW, AFTER THE CAUSE OF ACTION HAS OCCURRED.

    1. 6.5.General. 

THIS ARTICLE 6 SHALL SURVIVE THE FAILURE OF ANY EXPRESS REMEDY.  THE PARTIES AGREE THAT THE ADDITION OF THIS SECTION TO THE SUBSCRIPTION AGREEMENT IS A MATERIAL INDUCEMENT FOR SMG TO EXECUTE THE SUBSCRIPTION AGREEMENT.

  1. 7.TERM AND TERMINATION 
    1. 7.1.Term.   

The term of the Subscription Agreement shall commence on the Effective Date set forth above and shall continue in full force and effect for a the term indicated in the Order(s) then in effect unless otherwise terminated earlier as provided hereunder (“Initial Term”).  After the expiration of the Initial Term, the Subscription Agreement shall automatically renew for successive thirty (30) day periods unless otherwise terminated by the parties upon thirty (30) days’ notice.

    1. 7.2.Termination.  

Either party may terminate the Subscription Agreement immediately upon written notice:

(a) in the event that the other party commits a material breach of the Subscription Agreement, or if the other party fails to cure any material breach or provide a written plan of cure acceptable to the non-breaching party within thirty (30) days of being notified in writing of such breach, except for a breach of the Payment Terms which shall have a five (5) day cure period; or

(b) in the event of institution of bankruptcy, receivership, insolvency, reorganization, or other similar proceedings by or against either party under any section or chapter of the United States Bankruptcy Code, as amended, or under any similar laws or statutes of the United States or any state thereof, or the making of an assignment for the benefit of creditors.

If Client fails to cure its breach of the Payment Terms of the Subscription Agreement, SMG will be entitled to suspend SMG’s performance (including, without limitation, any Campaign then in process) without further notice to Client, and to require full payment before any additional performance is rendered by SMG.  In addition, SMG shall be entitled to collect all past and current amounts due and owing, and to accelerate all future amounts to be due, such that all remaining periodic payments are immediately due and owing. Client shall be responsible to pay any collection expenses (including attorneys’ fees) incurred by SMG.

    1. 7.3.Termination Procedure.   

Where a party has a right to terminate the Subscription Agreement, the non-breaching party may, at its discretion, either terminate the Subscription Agreement or the applicable Schedule. Schedules that are not terminated shall continue in full force and effect under the terms of the Subscription Agreement.

    1. 7.4.Actions on Termination.   

Upon termination, any rights of Client to access ssnapp shall terminate, and Client shall return or destroy, including purging from any electronic memory, any Protected Materials then held by Client and an authorized representative of Client shall certify to such return or destruction.  Termination of this Agreement for any reason shall not excuse Client’s obligation to pay in full any and all amounts due, nor shall termination by SMG result in a refund of fees paid.

  1. 8.GENERAL PROVISIONS  
    1. 8.1.Taxes.   

Unless expressly provided otherwise, the prices in the Order(s) do not include taxes.  Client agrees to pay any taxes, other than those based on SMG’s net income, arising out of the Subscription Agreement, including any federal, state, and local sales, use, value added, or other taxes.  Client shall defend, indemnify, and hold harmless SMG from any liability or expense incurred by SMG as a result of Client’s failure or delay in paying taxes due.

    1. 8.2.Publicity.   

SMG and Client will cooperate in good faith to create a mutually acceptable joint press release concerning the transaction described by the Subscription Agreement.  SMG may confirm Client is a customer of SMG, may include Client’s name on SMG’s website, and is authorized to include Client’s name and/or logo in SMG’s sales presentations. Nothing in the Agreement shall be construed to grant either party any right, title or interest in the name or logo of the other party beyond that granted herein.

    1. 8.3.Force Majeure.   

Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under the Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, hacker attacks, data security breaches, or internet or other communication failures, or governmental actions.  The delayed party shall give the other party notice of such cause and shall use its reasonable commercial efforts to correct such failure or delay in performance.

    1. 8.4.Nonsolicitation.  

During the term of the Subscription Agreement and for a period of one year following its termination, neither party will solicit for employment directly or through other parties, without the other party’s written permission, any individual employed by the other party.  Notwithstanding the forgoing, the solicitation or hiring of individuals responding to general public marketing and recruiting advertisements and events shall not be a violation of this provision; only active, targeted solicitation is prohibited.

    1. 8.5.Notices.   

Any notice required or permitted to be sent under the Subscription Agreement shall be delivered by hand, by overnight courier, or by certified mail, return receipt requested, to the address of the parties first set forth in the Subscription Agreement or to such other address of the parties designated in writing in accordance with this Section. Notice shall be deemed received on the date of hand delivery or three (3) days after being sent by overnight courier or certified mail.

    1. 8.6.Relationship.   

Neither party may bind the other party or act in a manner which expresses or implies a relationship other than that of independent contractor.

    1. 8.7.Survival.   

The following provisions will survive any termination or expiration of the Subscription Agreement or Subscription Order: Section 2 of the Subscription Order, Sections 3, 4, and 6 and Sections 7.4, 8.5, 8.7, 8.9, and 8.11 of the Customer Terms and Conditions.

    1. 8.8.No Waiver.   

Any waiver of the provisions of the Subscription Agreement or of a party’s rights or remedies under the Subscription Agreement must be in a hard copy writing to be effective. Any such waiver shall constitute a waiver only with respect to the specific matter described in such writing and shall in no way impair the rights of the party granting such waiver in any other respect or at any other time.

    1. 8.9.Entire Agreement; Amendment; Severability.  

The Agreement constitutes the parties’ entire agreement relating to its subject matter.  It cancels and supersedes all prior or contemporaneous oral or written communications, agreements, requests for proposals, proposals, conditions, representations, and warranties, or other communication between the parties relating to its subject matter as well as any prior contractual agreements between the parties. The Subscription Agreement, these Customer Terms and Condisions, and each Order can only be amended by a hard copy written instrument signed by both parties.  No text message whether through short message services or otherwise, or text of any electronic mail, shall be deemed a writing hereunder or shall otherwise be deemed effective for purposes of modifying the Subscription Agreement and each Schedule.  If any provision of the Subscription Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired.

    1. 8.10.No Third Party Beneficiaries.  

The Agreement is for the benefit of the parties and their successors and permitted assigns, and does not confer any rights or benefits on any third party, including any employee of a party, any client of a party, or any employee of a client of a party.

    1. 8.11.Governing Law; Venue; Dispute Resolution.  

The Agreement shall be governed by and construed in accordance with the laws of the State of California without giving effect to its principles of conflict of laws.  Any dispute, claim or controversy arising out of or relating to the Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of the Agreement to arbitrate, shall be determined by arbitration in Santa Clara County, California before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures.  Judgment on the arbitration award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction exclusively in the state or federal courts of Santa Clara County, California.  If either party breaches or threatens to breach the provisions of Section 3, each party agrees that the non-breaching party will have no adequate remedy at law and is therefore entitled to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual money damages.  

    1. 8.12.Order of Precedence.  

To the extent any terms and conditions of these Customer Terms and Conditions conflict with the terms and conditions of any Order, the provisions of these Customer Terms and Conditions shall control unless the Order expressly states the intent to supersede a specific portion of the Customer Terms and Conditions. Any pre-printed terms of any Client purchase order or other business processing document shall have no effect.

    1. 8.13.Headings and Drafting.   

The headings in the Subscription Agreement shall not be used to construe or interpret the Subscription Agreement.  The Subscription Agreement shall not be construed in favor of or against a party based on the author of the document.

    1. 8.14.Counterparts.   

The Subscription Agreement and each Order may be executed in one or more counterparts, each of which shall constitute an enforceable original of the Subscription Agreement, and that facsimile and/or pdf scanned copies of signatures shall be as effective and binding as original signatures.