Terms of Service

Social Flex

TERMS OF SUBSCRIPTION SERVICE
Effective: August 26, 2020

These Terms of Subscription Service (“Agreement”) are entered into by and between the entity or person placing an order or accessing the Solutions (as defined below) (“Client”) and the Social Flex entity specified on the Quote or other order form.

The “Effective Date” of this Agreement is the date that is the earlier of (a) the effective date of the first Quote referencing this Agreement and (b) Client’s initial access to the Solutions through any Social Flex online registration, provisioning, or order process.

If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to this Agreement in which case the term “Client” shall refer to such entity. If you do not have such authority, or if you do not agree to the terms of this Agreement, do not accept this Agreement or use the Solutions. If you receive free access or a trial or evaluation subscription to the Solutions, you are deemed a “Client” under this Agreement and are subject to its terms, including the restrictions and limitations in Section 7.4 (Trial Subscriptions) below. You may not use or access the Solutions if you are a direct competitor of Social Flex or if you are accessing or using the Solutions for the benefit of a direct competitor of Social Flex.

This Agreement permits Client to purchase a subscription to Solutions and related Professional Services from Social Flex pursuant to Quotes and sets forth the terms and conditions under which those Solutions and Professional Services will be delivered. This Agreement shall govern Client’s initial purchase as well as any future purchases made by Client that reference this Agreement. This Agreement includes any and all Exhibits, referenced policies and attachments, and any and all Quotes and SOWs.

From time to time, Social Flex may modify this Agreement with ten (10) days’ notice via electronic mail to Client. Unless otherwise specified by Social Flex, changes become effective for existing Clients upon posting of the modified Agreement. If Client does not agree to such changes, Client must notify Social Flex of such disagreement within the ten (10) day notice period, and Social Flex (at its option and as Client’s exclusive remedy) may either: (i) permit Client to continue under the prior version of this Agreement until the next renewal of the current Order Term, after which the modified Agreement will apply (for example, if Client is on an annual Order Term, then the modified Agreement will apply starting from the beginning of Client’s next annual Order Term after it is posted) or (ii) terminate remaining Order Term of Client and provide to Client a refund of any Solution fees that Client already paid with respect to the terminated portion of the applicable Order Term. Social Flex will use reasonable efforts to notify Client of the changes through Client’s Account, email, or other means. Client may be required to click to accept the modified Agreement before using the Solutions in a renewal Order Term, and in any event continued use of the Solutions during the renewal Order Term will constitute Client’s acceptance of the version of the Agreement in effect at the time the renewal Order Term begins.

Each party expressly agrees that this Agreement is legally binding upon it.

1. DEFINITIONS and INTERPRETATION
1.1 Definitions – Capitalized terms not included in this Section are defined contextually in this Agreement.

a) “Account” means the full request Client makes of Social Flex for a given Order Term.
b) “Affiliate” means an entity that owns or controls, is owned or controlled by, or is under common ownership or control with Client, where “control” means the power to direct the management or affairs of an entity and “ownership” means the beneficial ownership of fifty percent (50%) or more of the voting securities or other equivalent voting interests of an entity.
c) “Client Applications” means Client’s and its Affiliates’ online websites, mobile applications, SharePoint sites, and other properties that Client maintains access to. These may or may not expressly relate to the Solutions Data.
d) “Client Content” means any visual elements, images, text, or other content provided by Client use within Solutions (e.g., to customize Client’s accounts) as permitted by Social Flex and the functionality of the Solutions.
e) “Client Materials” means any Client materials (including Solutions Data or Client Content) reasonably required for Social Flex to perform the Professional Services.
f) “Contractors” means independent contractors and consultants who are not competitors of Social Flex.
g) “Deliverables” means any deliverables provided by Social Flex to Client in connection with the Solutions.
h) “Documentation” means the applicable Solutions descriptions and end user technical documentation made available with the Solutions and currently located here (as may be modified from time to time by Social Flex in its sole discretion).
i) “EU Data Protection Directive” means EU Data Protection Directive 95/46/EC (or successor).
j) “Laws” means all applicable local, state, federal, and international laws, regulations and conventions.
k) “Order Term” means the subscription term specified for each Solution in the applicable Quote and, in the event that such Quote does not include a “start date”, the Order Term will commence on the date that Social Flex electronically confirms Client’s order to the applicable Solution.
l) “Permitted Users” means Client’s employees, Contractors, and Affiliates (and its Affiliates’ employees and Contractors).
m) “Purchased Units” means the specified usage metrics for a Solution, which may include frequency of posts, holiday posts, post approval processes, or metrics.
n) “Quote” means Social Flex-generated order documentation (including any Social Flex online registration, provisioning, or other order process) referencing this Agreement and mutually executed or electronically accepted by Client.
o) “Solutions” means the package options ordered by Client to post to Client’s Social Media Accounts under established terms.
p) “Solutions Data” means any data necessary for accessing Client’s social media accounts to begin providing Solutions agreed to by purchase.
q) “Statement of Work” or “SOW” means a statement of work for Professional Services executed by both parties describing the work to be performed, fees, and any applicable milestones, assumptions, and other technical specifications or related information.
r) “Third Party Platform” means a third party platform, website, or service which Clients may be using during Order Term. This also includes social media channels.

1.2 Interpretation – In this Agreement, the words “including” and “in particular” and any similar words or expressions are by way of illustration and emphasis only and do not operate to limit the generality or extent of any other words or expressions. Further, headings in this Agreement are for convenience only and do not affect its interpretation.

2. THE SOLUTIONS
2.1 Overview – Social Flex offers various Solutions to provide regular social media posts to Client’s various social channels, including but not limited to Facebook, Twitter, Pinterest, Instagram, and LinkedIn. Social Flex may make available optional add-ons, online courses, or other offers, which are also included in the “Solutions” under this Agreement and may be subject to supplementary terms specified by Social Flex.

2.2 Access and Use – Client may access and use the Solutions specified on the applicable Quote during the applicable Order Terms solely for its own internal business purposes and in accordance with the terms and conditions of this Agreement, the Documentation, and any scope of use restrictions designated in the applicable Quote.

2.3 Permitted Users – Client may allow its Permitted Users to access and use the Solutions, provided (i) Client remains responsible for compliance by each Permitted User with all of the terms and conditions of this Agreement, the Documentation, and any scope of use restrictions designated in the applicable Quote, and (ii) any use of the Solutions by a Permitted User is for the sole benefit of Client or its Affiliates. Only Client and its Permitted Users may access and use the Solutions, and use of the Solutions by Client and its Permitted Users in the aggregate must be within the scope of use restrictions designated in the applicable Quote, including the specified number of Purchased Units. Client acknowledges that personal data of Permitted Users is used by Social Flex in accordance with Social Flex’ Privacy Statement located at https://www.getsocialflex.com/legal/privacy-statement/ and is processed and stored in the United States (“S.”).

2.4 General Restrictions – Client shall not (and shall not permit any third party to):

(a) rent, lease, provide access to, or sublicense any Solution to a third party (except for Permitted Users as authorized in Section 2.3), copy any Solutions, or provide Solutions access to any direct competitor, regardless of whether it is for research, reselling, or otherwise;
(b) modify any Solution or any Documentation;
(c) remove or obscure any proprietary or other notices contained in any Solution;
(d) publicly disseminate performance metrics or benchmarking information regarding any Solution;
(e) attempt to gain unauthorized access to any Solution or other systems, networks, or data of Social Flex, or interfere with or disrupt the integrity or performance of any such Solution, systems, networks, or data;
(f) use or knowingly permit the use of any security testing tools in order to probe, scan, or attempt to penetrate or ascertain the security or vulnerability of any Solution or other systems, networks, or data of Social Flex; or
(g) use any Solution to retrieve, store, or transmit any malware (e.g., viruses, worms, time bombs, Trojan horses, or other harmful or malicious code, files, scripts, agents, or programs).

3. SOLUTIONS DATA
3.1 Rights in Solutions Data; Right to Use Solutions Data – As between the parties, Client shall retain all right, title, and interest (including any and all intellectual property rights) in the Client Data, and Social Flex claims no right or title in Client’s Solutions Data. Client is providing Solutions Data to Social Flex so Solutions may be provided as purchased. As such, Social Flex may access Third Party Platforms (social media channels) of Client to modify a Social Flex-generated post, publish a Social Flex-generated post, or otherwise edit or delete a Social Flex-generated post. Social Flex will not create, edit, modify, delete, or otherwise any other data on social channels, unless expressly requested and agreed upon within a unique Quote, SOW, and Order Term.

3.3 Data Retention Policy – Social Flex retains Client Materials as needed in order to fulfill Solutions within each Order Term. Social Flex expressly disclaims all other obligations with respect to data storage or delivery, including storage or delivery of any raw data included in Client Materials.

3.4 Client Obligations

(a) Generally. Client is solely responsible for the accuracy, content, and legality of all Solutions Data and for its Client Applications. Client shall ensure that Client’s use of the Solutions and all Solutions Data is at all times compliant with Client’s and any applicable Third Party Platform’s privacy policies and all Laws, including (if applicable) the California Online Privacy Protection Act or similar laws.

3.5 Third Party Platforms – Use of Third Party Platforms. Client is solely responsible for determining whether to use the Solutions with Third Party Platforms. Social Flex shall have no responsibility for any Third Party Platforms, including any social media management tools used (such as Buffer, HootSuite, Sprout Social, Later, Canva, or others), including for their availability, security, functionality, operation, or integrity, or for any use of Solutions Data by Third Party Platforms. Client acknowledges that Third Party Platforms may impose quotas or other usage restrictions. From time to time, Social Flex may change which Third Party Platforms may be used with the Solutions or discontinue integration with any Third Party Platforms.

4. INTENTIONALLY OMITTED

5. SOLUTIONS SECURITY AND DATA PROTECTION & PRIVACY
5.1 Solutions Security – Social Flex agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration, or disclosure of the Client Materials. Social Flex shall have no responsibility for errors in transmission, unauthorized third-party access, or other causes beyond Social Flex’ control. Further, notwithstanding anything to the contrary herein, Social Flex is not responsible in any way for Client Materials or Solutions Data after such Solutions Data is transmitted, copied, extracted, or removed from Social Flex’ servers by Client or a Third Party Platform.

6. OWNERSHIP
This is a subscription agreement for access to and use of the Solutions. Client acknowledges that it is obtaining only a limited right to the Solutions and that irrespective of any use of the words “purchase”, “sale”, or like terms hereunder, no ownership rights are being conveyed to Client under this Agreement. Client agrees that Social Flex or its licensors retain all right, title and interest (including all patent, copyright, trademark, trade secret, and other intellectual property rights) in and to the Solutions and Documentation, Deliverables (excluding Client Materials), all report templates and pre-existing content and materials of Social Flex, all related and underlying technology, ecourses, documentation, work product, tools, designs, methodologies, processes, techniques, ideas, and know-how, and all derivative works, modifications, or improvements of any of the foregoing, as well as all comments, questions, suggestions, or other feedback relating to the Solutions or Professional Services that Client submits to Social Flex (collectively, “Social Flex Technology”). Except for the limited right to access and use the Solutions as expressly set forth in this Agreement, no rights in any Social Flex Technology are granted to Client.

7. ORDER TERM, FEES & PAYMENT
7.1 Order Term and Renewals – Unless otherwise specified on the applicable Quote, each Order Term shall automatically renew for the defined frequency, which shall either be monthly or every twelve (12) month periods, unless either party gives the other written notice of termination at least five (5) business days prior to expiration of the then-current Order Term.

7.2 Fees and Payment – All fees are as set forth in the applicable Quote or SOW and shall be paid by Client in accordance with the invoice schedule and in the currency set forth in the applicable Quote or SOW (and if none, payment shall occur upon order renewal or checkout). Except as expressly set forth in Section 8.2 (Termination for Cause), Section 9.1 (Limited Warranty), and Section 12.1 (Indemnification by Social Flex), all fees are non-refundable. The rates in the applicable Quote or SOW are valid for the Order Term set forth in such Quote or SOW and thereafter shall be subject to an increase of no more than five percent (8%) per year (subject to Client retaining the same Solutions package, capacity and functionality levels). Client is required to pay any sales, use, Goods and Services Tax (GST), value-added, withholding, or similar taxes or levies, whether domestic or foreign (other than taxes based on the income of Social Flex), and all such taxes and levies are excluded from any rates or prices provided by Social Flex. Any late payments shall be subject to a service charge equal to 3.5% per month of the amount due or the maximum amount allowed by Law, whichever is less; or termination of Order Term will occur.

7.3 Suspension of Solutions – If (a) Social Flex has sent Client a payment reminder for an overdue payment, and Client fails to pay the amount due within three (3) business days after receiving such payment reminder, or (b) Client has breached its obligations under Section 2.5 (General Restrictions) or Section 3.4 (Client Obligations), then, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), Social Flex reserves the right to suspend Client’s access to the applicable Solution, content delivery and any related support, or professional services, without liability to Client, until payment has been made or the breach has been cured. Prior to suspending Client’s access for Client’s breach of Section 2.5 (General Restrictions) or Section 3.4 (Client Obligations), Social Flex will use reasonable efforts to provide Client with notice and a reasonable opportunity to cure, unless Social Flex reasonably determines that such breach may cause harm to other clients or threaten the security or integrity of a Solution, in which case suspension may be immediate.

7.4 Trial Subscriptions – If Client receives free access or a trial or evaluation subscription to the Solutions (a “Trial Subscription”), then Client may use the Solutions in accordance with the terms and conditions of this Agreement and the applicable Quote for the period designated in such Quote or otherwise by Social Flex (and if not designated, then for fifteen (15) days) (“Trial Period”). Trial Subscriptions are permitted solely for Client’s use to determine whether to purchase a full subscription to the Solutions. Client may not use a Trial Subscription for any other purpose, including for competitive analysis. At the end of the Trial Period, the Trial Subscription will expire and Client will have the option to purchase a full subscription to the Solutions. If Client purchases a full subscription, all of the terms and conditions in this Agreement will apply to such purchase and the use of the Solutions unless otherwise specified in the Quote for the Trial Subscription. Social Flex has the right to terminate a Trial Subscription at any time for any reason. The Solutions may have a mechanism that limits access to such Solutions during the Trial Period and Social Flex may otherwise restrict certain product functionality during the Trial Period (including limiting Purchased Units or other usage as may be specified by Social Flex). Client shall not attempt to circumvent any such mechanism or restriction. Notwithstanding Section 3.3 (Data Retention Policy), Social Flex has no obligation to retain Solutions Data collected or retrieved with a Trial Subscription during or after the Trial Period. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, DURING THE TRIAL PERIOD THE SOLUTIONS ARE PROVIDED “AS IS” AND SOCIAL FLEX WILL HAVE NO WARRANTY OR OTHER OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS UNLESS OTHERWISE SPECIFIED IN THE QUOTE.

8. TERM AND TERMINATION
8.1 Term – This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Order Terms.

8.2 Termination for Cause – Either party may terminate this Agreement (including all related Quotes) if the other party:

(a) fails to cure any material breach of this Agreement (including a failure to pay fees);
(b) ceases operation without a successor; or
(c) seeks protection under any bankruptcy, insolvency event, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).

Upon termination by Client for Social Flex’ breach in accordance with this Section 8.2, Social Flex shall promptly refund to Client any such Solution fees already paid with respect to the terminated portion of the applicable Order Terms. Upon termination by Social Flex for Client’s breach, Client shall pay Social Flex for the total fees contractually committed for all Order Terms.

8.3 Effect of Termination – Upon any expiration or termination of this Agreement, Client shall:

(a) immediately cease any and all use of and access to its Account and the Solutions (including any and all related Social Flex Technology);
(b) Erase any and all copies of the Documentation, any Social Flex-related passwords or access codes, and any other Social Flex’ Confidential Information in its possession.

Upon request, Client shall certify to Social Flex in writing that it has fully complied with the foregoing requirements. Client acknowledges that, following termination, it shall have no further access to its Account or any Solutions Data, and that Social Flex may delete Client’s Account and Erase any Solutions Data in its possession at any time, except for backup copies kept for disaster recovery purposes or as required to comply with Laws. Neither party shall have any liability resulting solely from a permitted termination of this Agreement in accordance with its terms. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.

8.4 Survival – The following Sections shall survive any expiration or termination of this Agreement: 5 (General Restrictions), 3.3 (Data Retention Policy), 6 (Ownership), 7.2 (Fees and Payment), 8 (Term and Termination), 9.2 (Warranty Disclaimer), 11.2 (Rights to Deliverables), 11 (Limitation of Remedies and Damages), 12 (Indemnification), 13 (Confidential Information), and 15 (General Terms).

9. WARRANTY AND DISCLAIMER
9.1 Limited Warranty – Social Flex warrants, for Client’s benefit only, that the Solutions will operate in substantial conformity with the applicable Documentation. Social Flex’ sole liability (and Client’s sole and exclusive remedy) for any breach of this warranty shall be, in Social Flex’ sole discretion and at no charge to Client, to use commercially reasonable efforts to correct the reported non-conformity or, if Social Flex determines (in its sole discretion) such remedy to be impracticable or fails to correct the non-conformity, either party may terminate the applicable Order Term and Client shall receive as its sole remedy a refund of any Solution fees that Client already paid with respect to the terminated portion of the applicable Order Term.

The limited warranty set forth in the first sentence of this Section 9.1 shall not apply:

(a) unless Client notifies Social Flex within fifteen (15) days following the date on which Client first noticed the non-conformity;
(b) if the error was caused by misuse, unauthorized modifications, or third-party hardware, software or services; or
(c) to any use of the Solutions provided on a no-charge basis (e.g., Trial Subscriptions).

9.2 Warranty Disclaimer – EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN THIS AGREEMENT, THE SOLUTIONS AND ALL RESULTS AND REPORTS GENERATED THEREFROM AND ANY PROFESSIONAL SERVICES ARE PROVIDED “AS IS”. NEITHER SOCIAL FLEX NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT (BUT FOR CLARITY THIS DISCLAIMER OF WARRANTIES OF NONINFRINGEMENT DOES NOT LIMIT SOCIAL FLEX’ INDEMNIFICATION OBLIGATIONS IN SECTION 12). WITHOUT LIMITING SOCIAL FLEX’ EXPRESS OBLIGATIONS IN SECTION 5 (SOLUTIONS SECURITY & PRIVACY), 9.1 (LIMITED WARRANTY) OR 10 (SUPPORT SERVICES; sla), WEBTRENDS DOES NOT WARRANT THAT CLIENT’S USE OF THE SOLUTIONS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT IT WILL REVIEW THE SOLUTIONS DATA FOR ACCURACY, THAT IT WILL PRESERVE OR MAINTAIN THE SOLUTIONS DATA WITHOUT LOSS, OR THAT THE SOLUTIONS WILL MEET CLIENT’S BUSINESS GOALS OR OTHER REQUIREMENTS OR EXPECTATIONS (OR, IF ACHIEVED, THAT SUCH RESULTS WILL BE SUSTAINABLE). SOCIAL FLEX SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF SOCIAL FLEX (INCLUDING BUT NOT LIMITED TO ANY THIRD PARTY PLATFORM). CLIENT MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF such statutory rights, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

10. Support Services – During the applicable Order Terms, Social Flex shall provide end user support in accordance with the then current version of the terms located at https://www.getsocialflex.com/support/ (or such other URL as Social Flex may provide from time to time) for the support plan specified in the applicable Quote.

11. Limitation of Remedies and Damages
11.1 Consequential Damages Waiver – NEITHER PARTY (NOR ITS Licensors) SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS, ANY LOSS OF USE, OR INTERRUPTION OF BUSINESS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

11.2 Liability Cap – EXCEPT FOR EXCLUDED CLAIMS, NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EACH PARTY’S AND ITS LICENSORS’ ENTIRE LIABILITY TO THE OTHER PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY CLIENT TO SOCIAL FLEX DURING THE ORDER TERM IN QUESTION UNDER THIS AGREEMENT.

11.3 Excluded Claims – “Excluded Claims” means (a) amounts payable to third parties by Client pursuant to Section 12.2 (Indemnification by Client) or (b) any claim arising from Client’s breach of Section 5 (General Restrictions) or Section 3 (Solutions Data).

11.4 Failure of Essential Purpose – The parties agree that the limitations specified in this Section 12 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

12. INDEMNIFICATION
12.1 By Social Flex – Social Flex shall defend Client from and against any claim by a third party alleging that Social Flex’ proprietary services or other offers used in the performance of the Solutions, when used as authorized under this Agreement, actually infringes a U.S. or Great Britain (“GBR”) patent, U.S. or GBR copyright, or U.S. or GBR trademark, and shall indemnify and hold harmless Client from and against any damages and costs awarded against Client or agreed in settlement by Social Flex (including reasonable legal fees) resulting from such claim.

If Client’s use of any Solution is (or in Social Flex’ opinion is likely to be) enjoined, if required by settlement, or if Social Flex determines such actions are reasonably necessary to avoid material liability, Social Flex may, in its sole discretion:

(a) substitute substantially functionally similar products or services;
(b) procure for Client the right to continue using the Solution; or
(c) if (a) and (b) are not commercially reasonable, terminate the Agreement and refund to Client any Solution fees that Client already paid with respect to the terminated portion of the applicable Order Terms.

The foregoing indemnification obligation of Social Flex shall not apply:

(1) if the Solution is modified by any party other than Social Flex, but solely to the extent the alleged infringement is caused by such modification;
(2) if the Solution is combined with products or processes not provided by Social Flex, but solely to the extent the alleged infringement is caused by such combination;
(3) to any unauthorized use of the Solution;
(4) to any action arising as a result of Solutions Data or any third-party deliverables or components contained within the Solution;
(5) if Client settles or makes any admissions with respect to a claim without Social Flex’ prior written consent.

THIS SECTION 12.1 SETS FORTH Social Flex’ AND ITS SUPPLIERS’ SOLE LIABILITY AND CLIENT’s SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM that Social Flex’ proprietary services used in the performance of the Solutions infringes a U.S. or GBR patent, U.S. or GBR copyright, or U.S. or GBR trademark.

12.2 By Client – Client shall defend Social Flex from and against any claim by a third party arising from or relating to:

(a) any Solutions Data or Client Application; or
(b) any breach or alleged breach by Client of Section 3.4 (Client Obligations); or
(c) any service or product offered by Client through the Client Applications,

and shall indemnify and hold harmless Social Flex from and against any damages awarded against Social Flex or agreed in settlement by Client (including reasonable legal fees) resulting from such claim.

12.3 Indemnification Process – The obligations of each indemnifying party are conditioned upon receiving from the party seeking indemnification:

(a) prompt written notice of a claim (but in any event notice in sufficient time for the indemnifying party to respond without prejudice);
(b) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of the claim; and
(c) all reasonable necessary cooperation of the indemnified party.

The indemnified party may participate in the defense of any claim with counsel of its own choosing at its expense. The indemnifying party may not settle a claim without the indemnified party’s prior written consent unless such settlement unconditionally releases the indemnified party from all liability and does not require the indemnified party to take or refrain from taking any action (except with respect to use or non-use of the Solutions or allegedly infringing materials).

13. CONFIDENTIAL INFORMATION
Each party (as “Receiving Party”) agrees that all proprietary materials, access, code, inventions, know-how, business, technical, and financial information that it obtains from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Without limiting the foregoing, any Social Flex Technology, performance information relating to the Solutions, and the terms and conditions of this Agreement and all Quotes and SOWs shall be deemed Confidential Information of Social Flex without any marking or further designation. Except as expressly authorized herein, the Receiving Party will:

(a) hold in confidence and not disclose any Confidential Information to third parties; and
(b) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement.

The Receiving Party may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know, provided that: (i) such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 13; and (ii) the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 13. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document:

(1) was rightfully in its possession or known to it prior to receipt of the Confidential Information;
(2) is or has become public knowledge through no fault of the Receiving Party;
(3) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or
(4) is independently developed by employees, agents, or contractors of the Receiving Party who had no access to such information.

The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore, that upon any such disclosure by the Receiving Party, the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.

14. MARKETING
During the term of the Agreement, Social Flex may use Client’s name, logos, and trademarks to identify Client as a customer on Social Flex’ website, social media, and other marketing materials.

15. GENERAL TERMS
15.1 Assignment – This Agreement will bind and insure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement except upon the advance written consent of the other party. Notwithstanding the foregoing, a party may assign this Agreement in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party’s assets or voting securities, provided that, in Client’s case, the assignee is not a competitor of Social Flex. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 1 will be null and void.

15.2 Severability – If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.

15.3 Governing Law; Jurisdiction and Venue – This Agreement shall be governed by the laws of the State of Florida and the U.S. without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to the subject matter hereof shall be the state and U.S. federal courts located in Orlando, Florida and both parties hereby submit to the personal jurisdiction of such courts.

15.4 Attorneys’ Fees and Costs – The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.

15.5 Notice – Any notice or communication required or permitted under this Agreement shall be in writing to the parties at the addresses set forth on the Quote or at such other address as may be given in writing by either party to the other in accordance with this Section and shall be deemed to have been received by the addressee:

(a) if given by hand, immediately upon receipt;
(b) if given by overnight courier service, the first business day following dispatch; or
(c) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.

Notices and communications may also be provided via electronic mail (which notices and communications shall be deemed to have been received immediately upon receipt), except that neither party shall provide any notice or communication related Section 12 (Indemnification) via electronic mail.

15.6 Amendments; Waivers – Except as otherwise expressly set forth herein, no supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Client will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.

15.7 Entire Agreement – This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.

15.8 Updates – Client acknowledges that the Solutions are on-line, subscription-based products and that, in order to provide improved customer experience, Social Flex may make changes to the Solutions, and Social Flex will update the applicable Documentation accordingly. The support, data retention, and security terms described in Section 10 (Support Services) may be updated from time to time upon reasonable notice to Client to reflect process improvements or changing practices (but the updates will not materially decrease Social Flex’ obligations as compared to those reflected in such terms as of the Effective Date).

15.9 Force Majeure – Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.

15.10 Subcontractors – Social Flex may use the services of subcontractors and permit them to exercise the rights granted to Social Flex in order to provide the Solutions and any related professional services under this Agreement, provided that Social Flex remains responsible for:

(a) compliance of any such subcontractor with the terms of this Agreement; and
(b) the overall performance of the Solutions as required under this Agreement.

15.11 Independent Contractors – The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

15.12 Export Control – In its use of the Solutions, Client agrees to comply with all export and import laws and regulations of the U.S. and other applicable jurisdictions. Without limiting the foregoing,

(a) Client represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country;
(b) Client shall not (and shall not permit any of its users to) access or use the Solutions in violation of any U.S. export embargo, prohibition or restriction; and
(c) Client shall not submit to the Solutions any information that is controlled under the U.S. International Traffic in Arms Regulations.

15.13 No High Risk Use – The Solutions and all components thereto are not fault-tolerant. The Solutions and all components thereto are not designed or intended for use in any situation where failure or fault of any kind of the Solutions or any component could lead to death or serious bodily injury of any person, or to severe physical or environmental damage (“High Risk Use”). Client is not licensed to use the Solutions or any component thereof in, or in conjunction with, High Risk Use. High Risk Use is STRICTLY PROHIBITED. High Risk Use includes, for example, the following: aircraft or other modes of human mass transportation, nuclear or chemical facilities, and Class III medical devices under the Federal Food, Drug and Cosmetic Act. Client agrees not to use the Solutions, or any component thereof, in or in connection with, any High Risk Use.

15.14 Counterparts. This Agreement may be executed in counterparts (including execution by electronic signature, pdf or other electronic transmission), each of which will be deemed an original and legally binding and all of which together will be considered one and the same agreement.