These Oktopost Terms & Conditions ("Terms") and the Order Form (collectively, the "Agreement") govern the use by the entity set forth in the attached Order Form ("Customer") of Oktopost's social media analysis service, which allows Customer to easily manage, measure and amplify its social media marketing activities (collectively, the "Service").
1. Service
Subject to these Terms (including payment of the Fee (as defined herein)), Oktopost hereby grants Customer the non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Service in a commercially reasonable manner. Customer’s access and use of the Service is restricted to Customer and its Affiliates and any access or use by any third party may be granted solely under a mutual written agreement between the parties, subject to applicable fees. "Affiliate” means subsidiaries, parent or holding corporations, corporations, persons or entities of which the direct or indirect ownership or control is shared by any combination of the foregoing. The term "control" means the possession of the power to direct or cause the direction of the management and policies of the company through the ownership of more than 50% of the voting securities or the right to appoint 50% of the directors.
2. Third Party Platforms
Usage of the Service may require access to Customer's LinkedIn/Facebook/ YouTube/Twitter or other third-party platforms (each, a "Third Party Platform"). The Customer shall comply with all terms and conditions applicable to such Third Party Platforms in the course of using the Service, including the Twitter Terms of Service located at www.twitter.com/tos and the YouTube Terms of Service, Security Settings, and Privacy Policy located at https://www.youtube.com/t/terms, https://myaccount.google.com/permissions, and http://www.google.com/policies/privacy, respectively, or any similar policy or terms of Third-Party Services. Certain features of our Service may depend on the availability of these Third Party Platforms and the features and functionality they make available to Oktopost. Oktopost does not control Third Party Platforms features and functionality, and they may change without any notice to Oktopost. If any Third Party Platform stops providing access to some or all of the features or functionality currently or historically available to Oktopost, or stops providing access to such features and functionality on reasonable terms, as determined by Oktopost in our sole discretion, Oktopost may stop providing access to certain features and functionality of our Service. Oktopost will not be liable to Customer for any refunds or any damage or loss arising from or in connection with the Third Party Platforms including in relation to the usage by Customer of such Third Party Platforms, Customer’s Content (as defined hereunder) and any such change made by the Third Party Platforms or any resulting change to our Service. Customer irrevocably waives any claim against Oktopost with respect to such Third Party Platforms.
3. Intellectual Property Rights & Restrictions
3.1. Other than the rights explicitly granted under these Terms, all intellectual property rights in the Service and any part thereof, including any and all derivatives, changes and improvements thereof (the "Oktopost Technology") lie exclusively with Oktopost. Customer hereby waives all claims or demands regarding any ownership or other rights in the Oktopost Technology. Customer shall not, and shall not let any third party; (i) attempt to infiltrate, hack, reverse engineer, decompile, or disassemble the Oktopost Technology or any part thereof for any purpose; (ii) represent that it possesses any proprietary interest in the Oktopost Technology or any part thereof; (iii) directly or indirectly, take any action to contest Oktopost Technology's intellectual property rights or infringe them in any way; or (iv) except as specifically permitted hereunder, use the name, trademarks, trade-names, and logos of Oktopost.
3.2. Customer may submit suggestions, comments, feature requests, or other feedback (the "Feedback") to Oktopost. Any such Feedback is the sole property of Oktopost, without any restrictions or limitations on its use. Customer hereby irrevocably assigns to Oktopost all rights, title, and interest in the Feedback, and explicitly and permanently waive any claims in relation to the Feedback.
4. Customer's Warranties
Customer hereby warrants, represents and covenants that: (i) the content Customer provides using the Service or included in any Third Party Platform (Collectively, the "Content"), and the products and services offered by Customer do not infringe upon any third party's rights, including but not limited to intellectual property rights, privacy rights and publicity rights; (ii) the Customer has the power and authority to enter into this Agreement, to perform its obligations and duties under this Agreement, and it has fully complied with any third-party licenses, permits and authorizations required in connection with the Agreement, including with the Content; (iii) the Content does not contain any viruses, worms, Trojan horses or other harmful or destructive code; (iv) the Customer shall not install any hidden components or bundle any additional software; (v) the Customer will comply with all applicable laws in its performance of this Agreement, including all applicable privacy laws and regulations; and (vi) the Content and the products offered by Customer are not unlawful, offensive, obscene or libelous, do not include any offensive material, do not offer or contain gambling products, counterfeit goods, tobacco, firearms, sexually explicit content, illegal products and does not violate the right of privacy or publicity of any end user or other third party.
5. Oktopost's Warranties
Oktopost hereby warrants and represents that, to its knowledge: (i) Oktopost has the power and authority to enter into this Agreement, to perform its obligations and duties under this Agreement, and it has complied with any third-party licenses, permits, and authorizations required in connection with the Service; (ii) the Service does not contain any viruses, worms, Trojan horses, or other harmful or destructive code; and (iii) it complies with all applicable laws in its performance of this Agreement.
6. Support
During the Term of this Agreement, Oktopost will provide Customer with technical support for the Oktopost Service as outlined in Oktopost’s Service Level Agreement.
7. Consideration
7.1. The Customer shall pay Oktopost a non-refundable pre-paid fee in accordance with the relevant Order Form (the "Fee"). All amounts payable under this Agreement are exclusive of any taxes (including, without limitations, sales tax, VAT, and similar taxes to the extent applicable). Except as expressly provided in this Agreement, each party shall bear its own costs and expenses incurred in performance of this Agreement.
7.2. If any invoiced amount is not received by Oktopost by its due date, then, without limiting Oktopost’s rights and remedies, such charges may accrue late interest at the lower of: (i) the rate of 1% per month; or (ii) the maximum rate permitted by applicable law from the date such payment was due until the actual payment date. In addition, if payment of any invoiced amount is not received upon the lapse of thirty (30) days following a written notice by Oktopost of overdue payment to Customer, Oktopost may suspend Customer’s access to the Service if Oktopost have not received the amounts overdue in full.
8. Disclaimer of Warranties
EXCEPT FOR THE WARRANTIES PROVIDED IN THIS AGREEMENT AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, OKTOPOST PROVIDES THE SERVICE ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THE WARRANTY OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, NON-INFRINGEMENT OR ACCURACY. OKTOPOST DOES NOT WARRANT THAT THE SERVICE WILL ALWAYS BE AVAILABLE, DELIVERED OR PERFORMED ERROR-FREE OR WITHOUT INTERRUPTION.
9. Confidentiality
Each party acknowledges that it may have access to certain confidential information of the other party (“Confidential Information”). Confidential Information will include all information in any form that under the circumstances of its disclosure, should reasonably be considered confidential, including but not limited to trade secrets, copyrights, patents and non-public information of any nature such as technical, scientific, financial or any other nature. Each party agrees that it will not use Confidential Information of the other party in any way, except as expressly required for the purposes of this Agreement, nor will it disclose to any third party (except as required by law or to that party’s attorneys, accountants and other advisors (the “Representatives”) as reasonably necessary on a need to know basis and to the extent such Representatives are bound by confidentiality obligations restrictive at least as those set forth herein) any of the other party’s Confidential Information and it will take reasonable precautions to protect the confidentiality of such information.
10. Data Privacy
10.1. Oktopost will maintain reasonable physical and technical safeguards to prevent unauthorized disclosure of or access to Content, in accordance with industry standards. Oktopost will notify Customer if it becomes aware of unauthorized access to Content. Oktopost will not access, view or process Content except (i) as provided for in this Agreement and in Oktopost’s privacy policy (“Privacy Policy”); (ii) as authorized or instructed by Customer, (iii) as required to perform its obligations under this Agreement; or (iv) as required by applicable law. Oktopost has no other obligations with respect to Content.
10.2. The Oktopost Data Processing Addendum (“DPA”) is incorporated by reference to and is deemed an exhibit to this Agreement, and shall apply to the processing of personal information which is part of Customer’s Content and use of the Service.
11. Indemnification
11.1. Customer shall defend, indemnify and hold harmless Oktopost, from and against any claims, damages, costs, liabilities and expenses (including reasonable attorneys’ fees) (“Loss”) arising out of or related to (i) Customer's use of the Third Party Platforms; or (ii) breach of its obligations and warranties under Section 4.
11.2. Oktopost shall defend, indemnify and hold Customer harmless, from and against any Loss pursuant to a third-party claim arising out of an allegation that the Service infringes any intellectual property right of a third party. The foregoing indemnification shall not apply to any claims relating to: (i) any modification made to the Service by anyone other than Oktopost; (ii) use, combination or operation of the Service with any other service or software not provided or authorized in writing by Oktopost; (iii) use of the Service in violation of the Agreement or applicable law; or (iv) use of the Service following Oktopost’s notice to Customer to stop using the Service because of an infringement or misappropriation claim.
11.3. If, at Oktopost’s sole discretion, the Service or any part thereof has become subject to any claim pursuant to section 11.2, Oktopost may, at its sole discretion and expense: (i) procure for Customer the right to continue using the Service as set forth hereunder; (ii) replace or modify the Service or applicable functionalities to make them non-infringing, in a manner in which the Service or the applicable functionalities will remain materially the same; or (iii) if in Oktopost’s opinion options (i) or (ii) are not reasonably practicable, terminate this Agreement or any Order Form applicable to such infringing portion of the Service and refund to Customer any prepaid Fees covering the remainder of the term of the terminated Order Form(s) after the effective date of termination. Sections 11.2 and 11.3 sets forth Oktopost’s sole liability (and Customer’s sole remedy) with respect to any infringement or misappropriation of third-party intellectual property rights.
11.4. The indemnified party shall provide the indemnifying party with: (i) prompt written notice of such claim; (ii) sole control over the defense and settlement of such claim; and (iii) information as may be reasonably requested by the indemnifying party.
12. Limitation of Liability
EITHER PARTY’S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNTS PAID BY CUSTOMER TO OKTOPOST DURING THE TWELVE (12) MONTHS PRECEDING THE DATE THE LIABILITY FIRST ARISES. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR LOST PROFITS, LOSS OF USE, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR PUNITIVE, EXEMPLARY, SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13. Term and Termination
This Agreement shall commence on the Effective Date of the Order Form and shall remain in effect until all subscriptions hereunder have expired or have been terminated (“Initial Term”). The Agreement shall be automatically renewed for additional successive periods identical in length to the Initial Term (the “Renewal Term”), until terminated by either party in accordance with the terms of this Agreement (the “Initial Term” and the “Renewal Term”, collectively the "Term"). Either party may terminate this Agreement by giving the other party no less than 60 days prior written notice before the expiry of the applicable Initial Term or Renewal Term, such termination shall come into effect upon the expiry of such Initial Term or Renewal Term.
13.1. Either party may terminate this Agreement immediately by giving written notice to the other party if: (i) the other party breaches a material provision of this Agreement and fails to cure the breach within seven days after being given written notice thereof; (ii) the other party is judged bankrupt or insolvent, makes a general assignment for the benefit of its creditors, a trustee or receiver is appointed for such party; or any petition by or on behalf of such party is filed under any bankruptcy or similar laws.
13.2. If this Agreement is Terminated by Customer in accordance with Section 13.1 Oktopost will refund Customer any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Oktopost in accordance with Section 13.1, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms to the extent permitted by applicable law. In no event will termination relieve Customer of its obligation to pay any fees payable to Oktopost for the period prior to the effective date of termination. In the case of conflict between these terms for termination and those set out in the Order Form the terms for termination in the Order Form shall prevail. Upon termination or expiration of this Agreement for any reason whatsoever, Customer will immediately cease use of the Service and each party shall return to the other party all of the other party's Confidential Information then in its possession. Sections 3, 4, 8-16 shall survive any expiration or termination of this Agreement.
13.3. Oktopost may suspend Customer’s access to the Service if it reasonably suspects that Customer or anyone on its behalf is using the Service in a manner that violates this Agreement, provided however, that Oktopost will use commercially reasonable efforts to provide Customer with notice and an opportunity to remedy such violation prior to any such suspension.
14. Publicity
Oktopost may issue a press release, case study, or general marketing communications concerning its involvement with Customer, including mentioning Customer as a client on Oktopost's website. Customer agrees to provide a reasonable level of cooperation and assistance in connection with development and publication of a case study related to Customer's use of the Service.
15. Governing law; Jurisdiction
This Agreement is governed by and construed exclusively in accordance with the laws of the State of New York, without regard to the principles of conflict of laws. Any and all disputes and controversies arising out of or in connection with the Agreement shall be brought exclusively before the federal or state courts in New York County.
16. Force Majeure
Neither party shall be liable for any failure or delay in the performance of its obligations under this Agreement (except for payment obligations) due to events beyond its reasonable control, including but not limited to: war; terrorism; acts of God; natural disasters; pandemics; government actions; strikes; riots; shortages; cyberattacks; denial of service attacks or similar attacks; or failures of the internet or other utility service. The affected party shall promptly notify the other party in writing of such an event, and performance shall be excused for the duration of the event.
17. Miscellaneous
Neither party may transfer or assign its rights or obligations under this Agreement without the prior written consent of the other party, except for in the case of a merger, reorganization, or acquisition of substantially all assets of the applicable party. Any purported assignment contrary to this section shall be void. This Agreement (i) incorporates any exhibits, appendices and other documents referenced in it including, but not limited to the DPA, and (ii) constitutes the entire agreement between the parties and supersedes any previous agreements or representations, either oral or written with respect to the subject matter of this Agreement. All amendments may be made only in writing. All notices shall be in writing and delivered either personally, or by registered mail or courier, to the address and contact of the parties or by email, as set forth in the Order Form. Any such notice shall be deemed given five business days after being placed in the mail, or one business day after personal delivery or email. Any failure by a party to insist upon or enforce performance by the other of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement or otherwise by law will not be construed as a waiver of such right.