HootSuite Media, Inc.® Solution Partner Agreement
This HootSuite Solution Partner Agreement, including all Schedules, (the "Agreement") is entered into by and between HootSuite Media Inc. (“HootSuite”), a Canadian corporation, with its principal place of business at 5 East 8th Ave, Vancouver, BC, V5T 4S8 and the entity agreeing to these terms ("Solution Partner"). This Agreement is effective as of the date Solution Partner clicks the "I Accept" button below (the "Effective Date"). If you are accepting on behalf of Solution Partner, you represent and warrant that: (i) you have full legal authority to bind your employer, or the applicable entity, to these terms and conditions; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of the party that you represent, to this Agreement. If you do not have the legal authority to bind Solution Partner, please do not click the "I Accept" button below.
WHEREAS, HootSuite delivers software applications ‘as-a-service’ over the Internet and Solution Partner wishes to refer or resell such Services (as defined below) to Solution Partner’s customers.
NOW THEREFORE, the parties intending to be legally bound, hereby agree as follows:
1.1 "Affiliate" means an entity that is directly or indirectly controlled by or is under common control with a party, where “control” means an ownership, voting or similar interest representing fifty percent (50%) or more of the total interests then outstanding of the relevant entity.
1.2 "Brand Features" means the trade names, trademarks, service marks, logos, domain names, and other distinctive Brand Features of each party, respectively, as secured by such party from time to time.
1.3 "Compliant Order" means an accepted order accepted in writing by HootSuite for the purchase of Services which complies with the terms of this Agreement, with the terms of the EULA, the User Agreements and/or with any other HootSuite policies then currently in place.
1.4 "Confidential Information" means all non-public information of the disclosing party (the “Discloser”) in any verbal, recorded, written or other form, including but not limited to the existence and content of the discussions between the parties and this Agreement; trade secrets, communication samples, pricing, inventions and confidential knowledge; information concerning the Discloser or Affiliates; information concerning Customers; Customer Data; the prices Solution Partner charges Customers for the Services; personally identifiable information; information concerning the business, processes, procedures, technology, customers, potential customers or suppliers of the Discloser or its Affiliates (including but not limited to customer records and lists of customers or suppliers); and any software, documentation or data of the Discloser or its Affiliates; provided that “Confidential Information” shall not include information which the receiving party (the “Recipient”) can establish: (i) was already in the Recipient’s possession at the time of disclosure by the Discloser; (ii) has become publicly available without any improper act or omission of the Recipient; (iii) was disclosed to the Recipient by a third party having legitimate possession of such information and having no legal obligation to maintain the confidentiality of such information; or (iv) was independently developed by the Recipient without access to or use of the Confidential Information. For the avoidance of doubt, each party to this Agreement is a Recipient and a Discloser.
1.5 "Customer" means an entity subscriber to Services who purchases Services hereunder, through Solution Partner's referral.
1.6 "Customer Data" means any and all files, information, data or other content in whatever form that Customer or Solution Partner (on Customer’s behalf) uploads to the Services and/or provides to HootSuite in connection with Customer signing up for and/or using the Services.
1.7 "EULA" means HootSuite’s end user license agreement or terms and conditions governing Customers’ access and use of the Services, as maintained and updated from time to time by HootSuite. A copy of the current version of the EULA as of the Effective Date is attached hereto as “Schedule C”.
1.8 "Intellectual Property Rights" means patents and patent applications, copyrights, trademarks, service marks, trade names, domain name rights, trade secret rights, and all other intellectual property rights.
1.9 "Level 1 Support" means support provided to Customers that involves being the first point of post-sales contact for Customers support needs.
1.10 "Solution Partner HootSuite Account" means a HootSuite Enterprise account issued to Solution Partner for the sole purpose of training and demonstrating the Services to prospective and current Customers.
1.11 "Service(s)" means the HootSuite Pro and HootSuite Enterprise products, as further described at their respective websites, (www.hootsuite.com/plans/pro and www.hootsuite.com/features) and such other products and services as both parties may agree to in writing the future by way of adding a separate Schedule substantially in the form entered into between the parties hereunder, which will incorporate the terms of this Agreement by reference.
1.12 "Taxes" means sales and use taxes.
1.13 "Term" means the Initial Term and any Renewal Terms for this Agreement as defined herein.
2. SOLUTION PARTNER GRANT AND SCOPE.
2.1 Solution Partner Appointment. Subject to the terms of this Agreement, HootSuite hereby appoints Solution Partner as a non-exclusive reseller of the Services to Customers and grants to Solution Partner a non-exclusive right to (i) demonstrate, promote, market, resell the Services to prospective Customers ; and (ii) use the Services for training, testing, support and any other purposes in order to fulfill its role as reseller and/or comply with its obligations under this Agreement.
2.2 Subcontracting. Solution Partner may not subcontract or outsource any or all of its obligations under this Agreement without the prior written consent of HootSuite in HootSuite’s sole discretion.
2.3 Non-exclusive. This Agreement is intended to constitute a non-exclusive relationship between Solution Partner and HootSuite.
3. SOLUTION PARTNER OBLIGATIONS AND RESTRICTIONS
3.1 Marketing and Promotion. Solution Partner will use commercially reasonable efforts to market and resell Services according to the terms and conditions set forth in this Agreement in accordance with the training and marketing materials provided by HootSuite as specified herein.
3.2 EULA. Solution Partner’s resale and Customer’s use of the Services shall be subject to Customer’s specific acceptance of the EULA. When purchasing the Services through Solution Partner, the EULA shall clearly be referenced to in the agreement signed between Solution Partner and Customer, and Customer shall agree to be bound by the EULA. Solution Partner acknowledges that the EULA may, from time to time, be modified by HootSuite. Should HootSuite update or change the EULA, Solution Partner shall be notified of such change or update by HootSuite in writing (the “Updated Terms”). Upon receipt, Solution Partner shall be responsible to provide Customers with the Updated Terms, and the Updated Terms shall become effective and binding on Solution Partner and on the Customer on the seventh (7th) business day after they are provided to Solution Partner. Solution Partner shall not have the right to modify the terms of the EULA in any way.
3.3 Solution Partner General Undertakings. i) Solution Partner shall not make any commitment, representation or warranty in respect of Services to Customers except as expressly provided in the EULA, this Agreement, or as otherwise authorized in writing by HootSuite; ii) Solution Partner shall perform its obligations under this Agreement in a good, workmanlike, diligent, efficient and professional manner consistent with reasonably applicable industry standards and shall at all times avoid deceptive, misealding or unethical practices that are, or might be detrimental to HootSuite, its Services or the public; iii) in performing its obligations under this Agreement, Solution Partner may only refer to itself as an “Authorized HootSuite Reseller”, the whole subject to the terms and conditions of this Agreement; iv) without limiting the generality of 3.3 iii) Solution Partner shall conduct its business for its own account, in its own name, and not as an agent, employee, partner, or franchisee of HootSuite (for added clarity, reference herein to the word “Partner” herein does not intend to make Solution Partner a partner of HootSuite); v) Solution Partner shall conduct its business in a manner that reflects favourably at all times on HootSuite and the good name, goodwill and reputation of HootSuite; vi) Solution Partner shall observe all reasonable directions and instructions given to it by HootSuite in relation to the promotion and marketing of the Services; vii) Solution Partner shall at all times abide with the User Agreements; and viii) Solution Partner shall ensure the compliance of its subcontractors, licensors, officers, directors and employees, partners and Affiliates (as applicable) with the terms of this Agreement, and the User Agreements and be responsible for any breach of the Agreement by such persons/entities.
3.4 Access to Solution Partner HootSuite Account. During the Term, HootSuite may provide Solution Partner with a Solution Partner HootSuite Account for its exclusive internal use, and solely to allow Solution Partner to demonstrate, and provide training for the Services to prospective and current Customers. Solution Partner’s use of the Solution Partner HootSuite Account is subject to its acceptance of the EULA, the User Agreements, and subject to all other terms and conditions outlined in this Agreement.
4. HOOTSUITE OBLIGATIONS
4.1 Training. HootSuite shall provide Solution Partner with training through HootSuite University. Should Solution Partner request for additional training to be provided, the details of the training program shall be detailed in the attached Schedules. All training will be provided by HootSuite to Solution Partner free of charge, unless otherwise agreed upon by the parties, as specified in the appliable Schedule.
4.2 Additional Obligations. Throughout the Term of this Agreement, HootSuite shall also:
i) Provide documentation, standard training literature, sales and promotional materials (which may include eletronic marketing materials) in such quantities as deemed necessary by HootSuite; and
ii) Ensure that all Services will be provided in a good, workmanlike, diligent and efficient manner.
5. COMPENSATION, ORDERING, INVOICING AND PAYMENT
5.1 Compensation. Compensation for Solution Partner is outlined in Schedule B attached.
5.2 Currency. All currency for Customers will be in Unites States dollars unless otherwise agreed to.
5.3 Compliant Order. Notwithstanding anything else in this Agreement, HootSuite reserves its right to disallow any Customer order placed by Solution Partner for any reason, including if the order is not a Compliant Order. HootSuite will make best efforts to ensure that Services will be available for access and use by a Customer within 48 business hours of a Compliant Order.
5.4 Payment. HootSuite shall remit payments to Solution Partner as outlined in Schedule B attached.
5.5 Taxes. The compensation payable under this Agreement are net amounts and do not include taxes. For all invoices covering Services, such taxes will be paid by Solution Partner. Notwithstanding anything to the contrary in this Agreement, each party will be responsible for taxes based on its own capital, net income, employment taxes of its own employees, and for taxes on any property it owns.
6. SUPPORT AND QUALITY ASSURANCE
6.1 Level 1 Support. Unless otherwise agreed in writing on a case-by-case basis, HootSuite will provide Level 1 Support to Customers who purchase Services through Solution Partner. Support will be provided in accordance with HootSuite’s then current Service Level Agreement published at www.hootsuite.com/enterpriseterms or at www.hootsuite.com/terms (as applicable) (the “SLA”). Solution Partner shall also have access to HootSuite’s trouble ticket system which can be accessed through http://partnerportal.hootsuite.com/support/. All reasonably required support that HootSuite provides to Solution Partner or Customers hereunder will be free of charge.
6.2 Audit Rights. Subject to the confidentiality obligations in this Agreement, Solution Partner agrees that HootSuite will have the right to audit Solution Partner’s processes to ensure that the quality of the services provided by Solution Partner is at least of equivalent quality to the quality of services HootSuite provides to its own customers. HootSuite’s audit rights shall include i) the right to review samples of communications sent by Solution Partner to potential and current Customers to assess the quality of responses and suggest reasonable modifications to such communications in good faith, and ii) the right to send questionnaires to Customers enrolled by Solution Partner to determine whether Solution Partner is providing an adequate level of service. Any such audit shall be conducted during regular business hours at a mutually agreeable time and upon reasonable advance notice. All costs of the audit shall be borne by HootSuite. Should HootSuite’s audit reveal that the services provided by Solution Partner are not of at least equivalent quality to the services HootSuite provides to its own customers, HootSuite will notify Solution Partner of the results of such audit. Solution Partner will be provided with the opportunity to cure any quality issues within thirty (30) business days of such notice. At the end of that period, HootSuite, acting in good faith will re-assess the quality of the services provided by Solution Partner and determine if the quality issues outlined by the audit have been cured by Solution Partner. Should HootSuite, in its sole discretion, determine that the quality issues have not been cured by Solution Partner, then HootSuite shall have the right to terminate this Agreement in accordance with Section 9.1.
7. CONFIDENTIAL INFORMATION
7.1 Obligations. Each party will: (a) protect the other party's Confidential Information with the same standard of care it uses to protect its own Confidential Information, but in no event less than reasonable care; and (b) not disclose the Confidential Information, except to its employees, contractors, subcontractors, agents, and professional advisors (collectively, “Representatives”) who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. Each party may use Confidential Information only to exercise rights and fulfill obligations under this Agreement while using reasonable care to protect it. Each party is responsible for any actions of its Representatives in violation of this Section 7. Notwithstanding anything to the contrary, each party may disclose the other party's Confidential Information (a) with such other party’s express written consent, and (b) when required by law but only after it, if legally permissible, notifies such other party and gives such other party the chance to challenge the disclosure.
8. INTELLECTUAL PROPERTY RIGHTS; BRAND FEATURES
8.1 Ownership. Except as expressly stated otherwise in this Agreement, neither party will acquire any rights, title or interest, in any of the Intellectual Property Rights belonging to the other party, or the other party's licensors. All ownership rights, title, and Intellectual Property Rights in and to the content accessed through any Services are the property of the applicable content owner and may be protected by copyright or other applicable laws. For the avoidance of doubt, as between HootSuite and Solution Partner, HootSuite retains all right, title and interest in and to the Services. Except for the limited rights and licenses granted to Solution Partner pursuant to this Agreement, and subject to the applicable obligations and restrictions set forth herein, nothing shall be construed to restrict, impair, encumber, alter, deprive or adversely affect the Services or any of HootSuite’s rights or interests therein or any other HootSuite Intellectual Property Rights, including but not limited to brands, information, content, processes, methodologies, products, goods, services, materials or rights, tangible or intangible. All rights not expressly granted in this Agreement are reserved by HootSuite.
8.2 Brand Features Licenses.
i. By HootSuite. During the Term, HootSuite grants to Solution Partner a nonexclusive, non-royalty bearing, and nonsublicensable license to display HootSuite's Brand Features solely for the purpose of Solution Partner’s marketing and distribution of the Services, subject to, and in accordance with, this Agreement.
ii. By Solution Partner. During the Term, Solution Partner grants to HootSuite a nonexclusive, non-royalty bearing, and nonsublicensable license to include Solution Partner’s Brand Features in presentations and marketing materials solely for the limited purposes of marketing HootSuite’s relationship with Solution Partner under this Agreement.
iii. Restricted Use. Each party may use the other party's Brand Features only as expressly permitted in this Agreement. Any use of a party's Brand Features will inure to the benefit of the party holding Intellectual Property Rights to those Brand Features. A party may revoke the other party's right to use its Brand Features pursuant to this Agreement with written notice to the other and a reasonable period to stop the use.
iv. Publicity. Without limiting the generality of the foregoing, neither party will issue any press releases, public announcement, or public statement regarding the existence or content of this Agreement, or related to the relationship between the parties without the mutual written approval of both parties.
9. AGREEMENT TERM; TERMINATION
9.1 Initial Term; Auto-Renewal; Termination for Convenience. This Agreement will commence on the Effective Date and will continue for an initial term of twelve months (the “Initial Term”). Following the expiry of the Initial Term, and on each anniversary of the Effective Date, this Agreement will renew for an additional term of twelve months (each a “Renewal Term” and collectivelly referred to as the “Term”). Notwithstanding the foregoing, at any time during the Term, either party may terminate this Agreement for convenience by providing at least fifteen (15) days prior written notice to the other.
9.2 Termination for Breach. Notwithstanding anything to the contrary elsewhere in this Agreement, either party may suspend performance or terminate this Agreement if: (i) the other party is in material breach of the Agreement and fails to cure that breach within ten (10) days after receipt of written notice; or (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days. Any violation of law is deemed a material breach of this Agreement.
9.3 General Effect of Termination. Upon any termination or expiration of this Agreement: (i) all rights and licenses granted by one party to the other will immediately cease; (ii) each party will promptly return to the other party, or destroy and certify the destruction of, all of the other party's Confidential Information, provided that the Recipient shall be entitled to retain archival copies of the Confidential Information for legal, regulatory or compliance purposes, and nothing shall require the erasure, deletion, alteration, or destruction of back-up tapes and other back-up media made in accordance with the Recipient’s document-retention policies and procedures, provided that all such retained Confidential Information remains subject to the obligations of confidentiality and restrictions on use set forth in this Agreement. Termination or expiration of this Agreement, in part or in whole, will not limit either party from pursuing other remedies available to it, and termination or expiration of this Agreement does not affect any Customer subscriptions of Services then in effect (as further described in 9.4).
9.4 Effect on Customers. The parties acknowledge and agree that Solution Partner will offer Services to Customers for fixed terms that may exceed the Term or expiry of this Agreement. As such, in order to ensure Customer’s ability to continue receiving the Services for the full term of each Compliant Order, upon any expiration or termination of this Agreement, at HootSuite’s option, the Term of this Agreement may nevertheless be deemed to be extended (to the extent necessary) on a Customer-by-Customer basis, and shall run concurrently with the term of each of the outstanding Compliant Orders entered into during the Term. The express intent of the parties in so stating is to allow Customer to continue having access to the Services, and to obligate Solution Partner to continue to make timely payment (if applicable) for the entire term of any such Compliant Order in order for Solution Partner to reasonably rely upon HootSuite to provide the Services to such Customer for the full term of the Compliant Order, regardless of the circumstances surrounding any termination of this Agreement. HootSuite shall not be obligated to provide Services to Customer beyond the term or on different conditions than those agreed to by HootSuite in the Compliant Order, irrespective of any agreement or representations to that effect by Solution Partner. Upon expiry or termination of this Agreement with Solution Partner, and upon termination of each individual Compliant Order, HootSuite will have the right to directly enter into an agreement with Customer which will allow Customer to continue subscribing to Services provided by HootSuite with no further compensation obligation to Solution Partner.
10.1 By HootSuite. HootSuite represents and warrants that the Services will achieve in all material respects the functionality described in the marketing materials provided by HootSuite through www.hootsuite.com and applicable to the Services procured to Customer.
10.2 By Solution Partner. Solution Partner represents and warrants that i) it will not make any false, misleading or unauthorized representations with regard to HootSuite or the Services that are contrary to those set out in this Agreement or to those set out in any documentation or materials provided by HootSuite or otherwise publicly available; ii) it shall cause each Customer purchasing the Services to consent to the EULA; iii) it shall not knowingly modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any Services made available by HootSuite in connection with this Agreement; iv) it shall perform its obligations under this Agreement in a professional manner consistent with reasonably applicable industry standards; and v) it will provide HootSuite with full and complete collaboration at all times.
10.3 By Both Parties. Each party further represents and warrants that (i) it has the legal power and authority to enter into this Agreement and perform its obligations hereunder; and (ii) it will comply with, and will not attempt to cause a violation by anyone of, all applicable laws, rules or regulations.
10.4 Disclaimer of Warranties. EXCEPT AS STATED IN SECTION 10, HOOTSUITE DOES NOT REPRESENT THAT CUSTOMER’S OR SOLUTION PARTNER’S USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICES WILL MEET SOLUTION PARTNER’S OR CUSTOMER’S REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICE AND/OR DOCUMENTATION WILL BE CORRECTED OR THAT THE OVERALL SYSTEM THAT MAKES THE SERVICES AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, OTHER TRANSMISSION NETWORKS, AND CUSTOMER’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED IN SECTION 10 ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY HOOTSUITE. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE. THE SERVICES ARE PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND IS FOR COMMERCIAL USE ONLY. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICES OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.
11.1 By HootSuite. HootSuite will indemnify, defend, and hold harmless Solution Partner, its employees, officers, directors and Affiliates from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys' fees) incurred in connection with any claim, action, proceeding, or judgment arising from any and all third-party claims that the Services as used in accordance with this Agreement, infringes third party copyrights, trade secrets or trademarks and shall hold Customer harmless from and against liability, damages, and costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys’ fees) (collectively, “Losses”) to the extent based upon such a Claim. Excluded from the above indemnification obligations are Claims to the extent arising from (a) use of the Services in violation of this Agreement or applicable law, or (b) use of the Services after HootSuite notifies Customer to discontinue use because of an infringement claim.
11.2 By Solution Partner. Solution Partner will indemnify, defend, and hold harmless HootSuite its employees, officers, directors and Affiliates from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys' fees) incurred in connection with any claim, action, proceeding, or judgment arising from claims that arise out of a breach of Section 10.2 or any and all third party claims that Solution Partner’s Brand Features infringe or misappropriate any Intellectual Property Rights of a third party.
11.3 Requirements for Obtaining Indemnification. To obtain indemnification, the party seeking indemnification (“Indemnitee”) must: (i) give written notice of any claim promptly to the other party (“Indemnitor”); (ii) give Indemnitor, at its option, sole control of the defense and settlement of such claim, provided that Indemnitor may not, without the prior consent of Indemnitee (not to be unreasonably withheld), settle any claim unless it unconditionally releases the Indemnitee of all liability; (iii) provide to Indemnitor all available information and assistance; and (iv) not compromise or settle such claim. THE INDEMNITIES ABOVE ARE THE ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION OF A THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS.
12. LIMITATION OF LIABILITY
12.1 Limitation on Indirect Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NEITHER PARTY MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR ANY DAMAGES OTHER THAN DIRECT DAMAGES, EVEN IF THE PARTY IS AWARE OR SHOULD KNOW THAT SUCH DAMAGES ARE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. FOR GREATER CERTAINTY, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR FOR ANY FAILURE TO REALIZE EXPECTED SAVINGS, ANY LOSS OF REVENUES OR PROFITS, LOST DATA, LOSS OF COMPUTER TIME OR ANY OTHER COMMERCIAL OR ECONOMIC LOSSES.
12.2 Limitation of Liability Amount. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL HOOTSUITE’S AGGREGATE LIABILITY FOR ALL CLAIMS OF ANY KIND, INCLUDING ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT OF FEES PAID TO SOLUTION PARTNER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE.
12.3 Exceptions to Limitations. These limitations of liability do not apply to breaches of confidentiality obligations. in the event of a breach of confidentiality obligations hereunder, such maximum liability of either party shall be an amount equal to six (6) times the equivalent of 12 months of fees paid or payable under this Agreement during the twelve (12) month period immediately preceding the date on which the cause of action arose.
13. MISCELLANEOUS PROVISIONS
13.1 Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the Province of British-Columbia and the federal laws of Canada, without regard to conflict of law principles. HootSuite and Solution Partner agree that any suit, action or proceeding arising out of, or with respect to, this Agreement or any judgment entered by any court in respect thereof shall be brought exclusively in the state or federal courts of the Province of British-Columbia located in the City of Vancouver, and each of HootSuite and Solution Partner hereby irrevocably accepts the exclusive personal jurisdiction and venue of those courts for the purpose of any suit, action or proceeding.
13.2 Force Majeure. Neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war, acts of God, earthquake, flood, weather conditions, embargo, riot, epidemic, acts of terrorism, acts or omissions of third party vendors or suppliers, equipment failures, sabotage, third party labor shortage or dispute, governmental act, failure of the Internet or other acts beyond such party’s reasonable control, provided that the delayed party: (i) gives the other party prompt notice of such cause; and (ii) uses reasonable commercial efforts to promptly correct such failure or delay in performance.
13.3 Counterparts. The parties may execute this Agreement in counterparts, including facsimile, PDF or other electronic copies, which taken together will constitute one instrument.
13.4 Entire Agreement. This Agreement is the parties' entire agreement relating to its subject matter and supersedes any prior or contemporaneous agreements related to such subject matter.
13.5 Modifications. Any modification, amendment, or addendum to this Agreement must be in writing and signed by both parties.
13.6 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, HootSuite may assign this Agreement in its entirety, without consent of Solution Partner, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
13.7 No Third Party Beneficiaries. The representations, warranties and other terms contained herein are for the sole benefit of the parties hereto and their respective successors and permitted assigns, and they shall not be construed as conferring any rights on any other persons.
13.8 Severability. If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be contrary to law, such provision shall be changed by the court or by the arbitrator and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions of this Agreement shall remain in full force and effect.
13.9 Notices. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by facsimile or mailed by registered or certified mail, return receipt requested, postage prepaid to the address for the other party first written above or at such other address as may hereafter be furnished in writing by either party hereto to the other party, as well as emailed to Solution Partner at the email address provided by Solution Partner in the application form initially submitted to HootSuite. Such notice will be deemed to have been given as of: (i) the date it is delivered, if delivered by personal delivery; (ii) the next business day, if deposited with an overnight courier; (iii) upon receipt of confirmation of facsimile delivery (if followed up by such registered or certified mail), if delivered by facsimile; and (iv) five days after being so mailed, if delivered by mail and email. If HootSuite provides any notice to Solution Partner’s Customers directly, HootSuite must also provide such notice to Solution Partner prior to providing any such notice to Customers.
13.10 Independent Contractors. Solution Partner and HootSuite are independent contractors, and nothing in this Agreement shall create any partnership, joint venture, agency, franchise, sales representative or employment relationship between Solution Partner and HootSuite. Each party understands that it does not have authority to make or accept any offers or make any representations on behalf of the other. Neither party may make any statement that would contradict anything in this section.
13.11 Headings. The headings of the sections of this Agreement are for convenience only and do not form a part hereof, and in no way limit, define, describe, modify, interpret or construe its meaning, scope or intent.
13.12 No Waiver. No failure or delay on the part of either party in exercising any right, power or remedy under this Agreement shall operate as a waiver, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise or the exercise of any other right, power or remedy.
13.13 Non-Solicitation. Neither party shall solicit for employment nor directly or indirectly induce the termination of employment of any of each other's personnel who are directly involved in the negotiation of this Agreement and/or any fulfillment of a party’s obligations under this Agreement, during the Term of this Agreement and for twelve (12) months following termination of this Agreement. The foregoing restrictions shall not apply if one party’s personnel seeks employment with the other party as a result of a response to a general solicitation (such as in a newspaper, trade journal, online posting or other advertisement or job fair).
13.14 Survival. Those provisions that by their nature should survive termination of this Agreement, will survive termination of this Agreement including, without limiting the generality of the foregoing, sections 7, 8, 9.3, 9.4, 10, 11, 12, 13 ( as applicable).
Solution Partner may offer to Customers the following products:
Overview of key features provided at http://hootsuite.com/plans/pro/
Overview of key features provided at http://hootsuite.com/features/
Solution Partner shall act as a simple referral entity between HootSuite and the Customer. Subject to payment of Solution Partner’s compensation as outlined in Exhibit B, Customers will be purchasing Services directly from HootSuite.
In accordance with the terms and requirements herein, HootSuite will pay Solution Partner a revenue share portion of the Services sold.The revenue share shall be based upon a Solution Partner’s Customer Revenue (as defined below) (the “Revenue Share”):
Revenue Share Details – HootSuite Pro
1. As used in this Agreement, “Customer Revenue” is defined as revenues (excluding sales tax) actually collected by HootSuite directly from Customers for the use of the Services and referred through Solution Partner as a Compliant Order, net of billing service fees of three percent (3%), credit card charges, bad debt fees, refunds, and any other applicable processing fees.
2. Subject to change at any time by HootSuite in its sole discretion, Customers shall pay HootSuite directly for Services. HootSuite will then pay Solution Partner the Revenue Share on a monthly basis provided that Solution Partner’s then current monthly Revenue Share is equal to or greater than $100 per month. In the event that Solution Partner’s current monthly Revenue Share is less than $100 per month, HootSuite will accrue Solution Partner’s monthly Revenue Share until such time that the total accumulated unpaid Revenue Share at the end of the then current month exceeds $250. All Revenue Share payments hereunder shall be paid within forty-five (45) days of the end of the period for which such Revenue Share is to be paid, and subject to HootSuite policies.
3. Monthly Customer Revenue shall not include revenue generated from HootSuite’s own customer accounts that have subscribed to the Services prior to the Effective Date of this Agreement.
Revenue Share Details - HootSuite Enterprise
1. As used in this Agreement, “Customer Revenue" is defined as revenues (excluding sales tax) actually collected by HootSuite Media directly from Customers for the use of the Products, net of billing service fees of three percent (3%), wire transfer fees, credit card charges, bad debt fees, refunds, and any other applicable processing fees.
2. Subject to change at any time by HootSuite in its sole discretion, HootSuite will pay Solution Partner the Revenue Share on a quarterly basis provided that Solution Partner's then current Revenue Share is equal to or greater than $100 per quarter. In the event that Solution Partner's then current quarterly Revenue Share is less than $100, HootSuite will accrue Solution Partner's Revenue Share until such time that the total accumulated unpaid Revenue Share at the end of the then current quarter exceeds $100. All Revenue Share payments hereunder shall be paid within forty-five (45) days of the end of the quarter for which such Revenue Share is to be paid, and subject to HootSuite policies.
3. Customer Revenue shall not include revenue from HootSuite’s own customer accounts that have subscribed to the Services prior to the Effective Date of this Agreement.
EULA as of the Effective Date
Subject to change by HootSuite, as per the below
PLEASE READ THESE TERMS OF SERVICE ("AGREEMENT" OR “TERMS”) CAREFULLY BEFORE USING THIS SITE AND THE SERVICES. These Terms are a legally binding contract between HootSuite Media, Inc., located at 5 East 8th avenue, Vancouver BC, V5T 4S8, Canada (“HootSuite”, “we”, “us”) and “Customer” “you”. HootSuite Media Inc. provides the Services (as defined below) to you subject to and conditioned upon your acceptance of these Terms.
BY ACCESSING AND USING THE SERVICES IN ANY WAY YOU ARE "ACCEPTING" AND AGREEING TO BE BOUND BY THESE TERMS, INCLUDING BUT NOT LIMITED TO THE WARRANTY DISCLAIMERS, LIMITATIONS OF LIABILITY, AND TERMINATION PROVISIONS BELOW.
HootSuite may update and change any or all of these Terms. If we update or change these Terms, the updated Terms will be provided in writing to Solution Partner and will become effective and binding on the Customer the seventh business day after they are communicated to Solution Partner.
“Authorized Users” means individuals who are authorized by Customer to use the HootSuite Platform with varying levels of control and access as specifiable by Customer and who have been supplied user identifications and password by Customer (or by HootSuite at Customer’s request). Authorized Users may include, without limitation, the employees, consultants, contractors, agents or other designees of Customer and its affiliates.
“HootSuite Platform” means HootSuite’s proprietary software delivered through its web platform via the Website www.hootsuite.com that provides for a single log-in, centralized web dashboard that enables Authorized Users to manage and publish to multiple Supported Platforms, including any derivatives, modifications or Updates thereto, if any and including any supplemental software code, documentation, or other material provided to Customer as part of the Services, whether in written or digital format.
“Customer Content” means (a) all information and data (including but not limited to proprietary images, video, audio, documents, customer information) or any other content in any media and format provided or made available to HootSuite by or on behalf of Customer for use in relation to the Customer’s use of the HootSuite Platform.
“End User” means any person, firm or enterprise that accesses and/or uses a Supported Platform.
“Solution Partner” shall mean entity agreeing to "Solution Partner Agreement".
“Supported Platform(s)” means social networking sites supported by the HootSuite Platform, including, without limitation, Twitter, Facebook, Linkedin, and other social networking sites as described via the Website www.hootsuite.com.
2. HootSuite Services
2.1 Services and License. During the Term, subject to the terms and conditions of this Agreement, and solely for the Customer’s internal business purposes, HootSuite hereby grants Customer a limited, non-exclusive, non-sublicenseable license to (a) access, use and interoperate the HootSuite Platform, and (b) use, execute and internally distribute the HootSuite Platform (the “Services”).
2.2 Customer Content License. Subject to the terms and conditions of this Agreement, during the Term, Customer hereby grants HootSuite a limited, non-exclusive, non-transferable license, without right of sublicense, to access, use, reproduce, electronically distribute, transmit, perform, format, display, store, archive, and index the Customer Content for the purpose of providing Services to Customer hereunder and to support Customer’s use of the HootSuite Platform.
2.3 Updates. Customer acknowledges that from time to time during the Term HootSuite may apply updates to the HootSuite Platform, and that such Updates may result in changes in the appearance and/or functionality of the HootSuite Platform. No Update shall disable, delete or significantly impair the HootSuite Platform. Excluding the addition of wholly new products, HootSuite shall provide, implement, configure, install, support and maintain any and all updates, upgrades, enhancements, improvements, releases, corrections, bug fixes, patches and modifications to the HootSuite Platform (collectively, the “Updates”).
2.4 Hosting Services; Service Levels. HootSuite shall host, serve, distribute and enable the availability of the HootSuite Platform and shall ensure that the HootSuite Platform is available to Customer in accordance with the service level criteria and performance metrics set forth in then current Service Level Agreement published at www.hootsuite.com/enterpriseterms or www.hootsuite.com/terms (as applicable) (the “Service Level Agreement” or “SLA”).
2.5 Customer Responsibilities. Customer shall (i) be responsible for Authorized Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Customer Content and of the means by which it acquired Customer Content, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the HootSuite Platform, including keeping its password and user name confidential, and preventing any third party from accessing or using its user name, password or account for the HootSuite Platform; (iv) be solely responsible and liable for all activity conducted through its account in connection with the HootSuite Platform; (v) notify HootSuite promptly if Customer becomes aware of or reasonably suspect any security breach, including any loss, theft or unauthorized disclosure or use of its password or account; and (vi) use the HootSuite Platform only in accordance with applicable laws and government regulations. The Customer must not: (a) reverse engineer, de-compile, hack, disable, disrupt, interfere with, disassemble, copy, decrypt, reassemble, supplement, translate, adapt or enhance any of the Services or the HootSuite Platform, including any hardware or software used to provide the Services; (b) upload to or transmit to the HootSuite Platform any content or anything else that (if reproduced, published, transmitted or used) may: be defamatory, threatening, abusive, harassing, hateful, obscene, pornographic, harmful or invasive of anyone's privacy, or excessively violent, violate any law including intellectual property, privacy or other laws; or give rise to civil or other liability; (c) upload to or transmit from the HootSuite Platform any data, file, software or link that contains or redirects to a virus, Trojan horse, worm or other harmful component; (d) interfere with the HootSuite Platform or any third party's use of the HootSuite Platform; or authorize or encourage any third party to do any of the above.
2.6 Third-party Websites. Customer acknowledges that the HootSuite Platform may enable or assist it to access, correspond with, and purchase services from, third parties via third-party websites and that it does so solely at its own risk. HootSuite makes no representation and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not HootSuite.
2.7 Non Exclusivity. Customer acknowledges that the rights granted to it under this Agreement are nonexclusive, and that, without limiting the foregoing, nothing in this Agreement will be interpreted or construed to prohibit or in any way restrict HootSuite’s right to (a) license, sell or otherwise make available the HootSuite Platform or Services to any third party; (b) perform any services for any third party; or (c) license, purchase or otherwise acquire any software, technology, products, materials or services from any third party.
2.8 Third-party Contractors. HootSuite may use third party contractors to provide some or all of the Services. The Services may be provided using servers and other equipment located in any country including Canada, the United States and elsewhere.
2.9 HootSuite Employees/Contractors. Customer will not directly or indirectly at any time during the Term, or for 12 months thereafter: (a) induce or encourage any employee or contractor of HootSuite to leave his or her employment or engagement with HootSuite; or (b) employ, attempt to employ, assist any person to employ, or retain as a consultant or contractor, any employee or contractor or former employee or contractor of HootSuite; without HootSuite's prior written consent.
3. Intellectual Property
3.1 HootSuite Platform. As between Customer and HootSuite, HootSuite retains all right, title and interest in and to the HootSuite Platform and except for the limited rights and licenses granted to Customer pursuant to this Agreement and subject to the applicable obligations and restrictions set forth herein, nothing shall be construed to restrict, impair, encumber, alter, deprive or adversely affect the HootSuite Platform or any of HootSuite’s rights or interests therein or any other HootSuite intellectual property, brands, information, content, processes, methodologies, products, goods, services, materials or rights, tangible or intangible. All rights not expressly granted in this Agreement are reserved by HootSuite.
3.2 Customer Content. Subject only to the limited license expressly granted hereunder and HootSuite’s rights under Section 2, as between Customer and HootSuite, Customer and its Authorized Users shall retain all right, title and interest in and to the Customer Content and all Intellectual Property Rights therein. Nothing in this Agreement will confer on HootSuite any right of ownership or interest in the Customer Content or the Intellectual Property rights therein. Customer is solely responsible for the Customer Content that Authorized Users upload, publish, display, link to or otherwise make available (hereinafter, “post”) on the HootSuite Platform, and Customer agrees that HootSuite is only acting as a passive conduit for the online distribution and publication of the Customer Content. HootSuite will not review, share, distribute, or reference any such Customer Content or post except as provided herein or as may be required by law. Customer agrees to take commercially reasonable steps to ensure that Authorized Users do not post Customer Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to an Authorized User, or any other person or entity; (ii) may create a risk of any other loss or damage to any person or property; (iii) may constitute or contribute to a crime or tort; (iv) contains any information or content that is unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, or otherwise objectionable; (v) contains any information or content that is illegal; or (vi) contains any information or content that Customer does not have a right to make available under any law or under contractual or fiduciary relationships. Customer represents and warrants that the Customer Content does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights, rights of publicity and privacy. Customer understands and agrees that any loss or damage of any kind that occurs as a result of the content of any post or Customer Content is solely Customer’s responsibility. HootSuite is not responsible for any public display or misuse of posts, or Customer Content, except in the case of gross negligence or intentional misconduct by HootSuite or its employees. Customer agrees that it will prohibit Authorized Users from uploading material to the HootSuite Platform in violation of the Intellectual Property Rights of any person and will act promptly to remove any infringing material from the HootSuite Platform in the event that it receives a notice qualifying under the DMCA. Customer also acknowledges that HootSuite may use Customer Content and general Customer information for the purpose of supporting and developing the HootSuite Platform, on the condition that HootSuite utilizes such information in a form that will not personally identify Customer.
4. HootSuite Products and Fees
4.1 Fees. The Customer will pay all fees as and when described per the Solution Partner order forms and invoices (the “Fees”).
5. Confidential Information and Security Requirements
5.1 Confidential Information. Each party will (and will cause its employees and agents to) keep the other party's Confidential Information strictly confidential, and will not: (a) use it or take any benefit from it except as required to perform or receive the Services, or (b) disclose it to anyone unless the other party consents or unless the recipient is required by law or court order to do so. In this agreement, "Confidential Information" means all information, data and financial information relating to the business, commercial strategies, pricing, personnel, customers, products or services of a party (the "discloser") but excludes any information that the other party (the "recipient") proves (a) was lawfully in the recipient's possession before receiving it from the discloser; (b) is provided in good faith to the recipient by a third party without breaching any rights of the discloser or any other party, or (c) is or becomes generally available to, or accessible by, the public through no fault of recipient.
5.2 Security Requirements. HootSuite has implemented technical and organizational measures consistent with the prevailing industry standards designed to secure Customer Content from accidental loss and from unauthorized access, use, alteration or disclosure. However, HootSuite cannot guarantee that unauthorized third parties will never be able to defeat those measures or use Customer Content for improper purposes.
6. Term and Termination
6.1 Term. This Agreement shall commence on the date Customer enters into an agreement with Solution Partner and shall continue thereafter for the term described in the agreement between Solution Partner and Customer (the "Term"). Notwithstanding the foregoing, in no event shall the Customer agreement Term exceed the term agreed to in writing between HootSuite and Solution Partner for the Customer's account.
6.2 Termination for Cause. HootSuite, Solution Partner or Customer may terminate this Agreement for cause (i) upon 30 days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
6.3 Effects of Termination. Upon termination of this Agreement for any reason: (a) Customer will immediately cease all use of the HootSuite Platform; and (b) Customer will have no further access to its account in the HootSuite Platform;
6.4 Survival. Any provision of this Agreement which, either by its terms or to give effect to its meaning, must survive, shall survive the expiration or termination of this Agreement.
7. Warranty Disclaimer
7.3 Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HOOTSUITE EXCLUDES ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. HOOTSUITE SPECIFICALLY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY AND NONINFRINGEMENT, THAT ITS SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT ITS SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, ERROR-FREE OR FREE OF VIRUSES NOR DOES HOOTSUITE WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM HOOTSUITE OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. HOOTSUITE DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES INCLUDING ANY LOSS OF CUSTOMER’S DATA. EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, THE SERVICES, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. HOOTSUITE DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY IN RELATION TO THE CONTENT MADE AVAILABLE THROUGH THE HOOTSUITE PLATFORM, INCLUDING BUT NOT LIMITED TO THE CUSTOMER CONTENT, OR ANY CONTENT, OR SERVICES PROVIDED BY THIRD PARTIES
8. Mutual Indemnification
8.1 Indemnification by HootSuite. HootSuite shall defend, indemnify and hold Customer and its directors, officers, employees and agents harmless from and against any and all third-party claims that the Services as provided by HootSuite infringe or misappropriate the intellectual property rights of a third party (a "Claim"); provided that Customer (a) promptly gives HootSuite written notice of the Claim, (b) gives HootSuite sole control of the defense and settlement of the Claim (provided that HootSuite may not settle or defend any Claim unless it unconditionally releases Customer of all liability), and (c) provides to HootSuite all reasonable assistance, at HootSuite’s expense. HootSuite will have no liability for any Claim to the extent it (i) is based on modification of the HootSuite Platform by or at the direction of Customer or an Authorized User; (ii) results from failure of Customer to use an updated version of the HootSuite Platform made available to Customer; (iii) is based on the combination or use of the HootSuite Platform with any other software, program or device not provided or specified by HootSuite if such infringement would not have arisen but for such use or combination or (iv) results from Customer’s operation of the HootSuite Platform in a manner that is inconsistent with its intended use. For avoidance of doubt, Hootsuite’s indemnification obligations in this section will not apply to third-party content accessed through the Hootsuite Platform.
8.2 Indemnification by Customer. Customer shall defend, indemnify and hold HootSuite, its affiliates, directors, officers, employees and agents harmless from and against all claims, losses, damages, penalties, liability and costs, including reasonable attorneys fees of any kind or nature which are in connection with or arising out of Customer’s use of the HootSuite Platform, or the breach of any terms of this Agreement.
8.3 Exclusive Remedy. This “Mutual Indemnification” section along with the remedies detailed in HootSuite’s Service Level Agreement state the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this section.
9. Limitation of Liability
9.1 LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY FOR ALL CLAIMS OF ANY KIND, INCLUDING ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE fees paid or payable by CUSTOMER FOR SERVICES HEREUNDER DURING THE three (3) month PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL HOOTSUITE, ITS DIRECTORS, EMPLOYEES OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THIS SERVICE OR ANY OTHER ASPECT OF THIS AGREEMENT. UNDER NO CIRCUMSTANCES WILL HOOTSUITE BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR CUSTOMER’S ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
CUSTOMER’S EXCLUSIVE REMEDIES FOR ANY INTERRUPTION OR CESSATION OF ACCESS OR TRANSMISSION TO OR FROM THE SERVICE ARE SET FORTH IN THE SERVICE LEVEL AGREEMENT.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF HOOTSUITE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR RESTRICT OR SHALL BE CONSTRUED AS EXCLUDING OR RESTRICTING THE LIABILITY OF HOOTSUITE FOR (I) THE DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF HOOTSUITE, ITS EMPLOYEES OR ITS AGENTS, OR (II) ANY LIABILITY WHICH CANNOT BE LIMITED OR EXCLUDED BY LAW.
10.1 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, HootSuite may assign this Agreement in its entirety without consent of Customer, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
10.2 Relationship of the Parties. Each Party is an independent contractor and each Party’s personnel are not employees or agents of the other Party for federal, state or other tax purposes or any other purposes whatsoever. Nothing in this Agreement shall be construed or deemed to constitute, create, give effect to or otherwise recognize a joint venture, partnership, business entity of any kind, nor constitute one Party an agent of the other Party. There are no third party beneficiaries, actual or intended, under this Agreement.
10.3 Force Majeure. Neither party will be in default or liable for any delay or failure to comply with this Agreement due to any act beyond the control of the affected party, provided such party immediately notifies the other.
10.4 Counterparts and Interpretation. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one single agreement between the Parties. Headings are for convenience only and are not to be considered in construing or interpreting this Agreement.
10.5 Amendment No amendment, supplement, restatement or termination of any provision of this Agreement shall be valid unless it is in writing and signed by each party to this Agreement at the time of the amendment, supplement, restatement or termination.
10.6 Severability Each provision of this Agreement is severable. If any provision of this Agreement is or becomes illegal, invalid or unenforceable in any jurisdiction, the illegality, invalidity or unenforceability of that provision will not affect the legality, validity or enforceability of the remaining provisions of this Agreement, or of that provision in any other jurisdiction.
10.7 Notices. All notices and other communication that the Parties give each other in connection with this Agreement must be in writing and will be deemed given if delivered by hand, double registered mail, or fax to the recipient at its address set out on the first page of this agreement or at such other address or telecommunication number of which the party gives the other notice. Proof of delivery in that manner will constitute proof of receipt.
10.8 Waivers. No waiver of any provision of this agreement is binding unless it is in writing and signed by all the parties to this Agreement except that any provision which does not give rights or benefits to particular parties may be waived in writing, signed only by those parties who have rights under, or hold the benefit of, the provision being waived if those parties promptly send a copy of the executed waiver to all other parties. No failure to exercise, and no delay in exercising, any right or remedy under this Agreement will be deemed to be a waiver of that right or remedy. No waiver of any breach of any provision of this Agreement will be deemed to be a waiver of any subsequent breach of that provision or of any similar provision.
10.9 Governing Law. This Agreement and each of the documents contemplated by or delivered under or in connection with this Agreement are governed exclusively by, and will be enforced, construed and interpreted exclusively in accordance with, the laws applicable in British Columbia, Canada. All disputes under this Agreement will be resolved by the courts of British Columbia in Vancouver.
10.10 Entire Agreement. This Agreement and all Exhibits hereto which are incorporated herein by this reference, constitutes the entire agreement between the Parties and supersedes any prior or inconsistent agreements, negotiations, representations and promises, written or oral with respect to the subject matter hereof.