Legal

THIS MASTER PLATFORM SUBSCRIPTION AGREEMENT GOVERNS AGENCY’S ACQUISITION AND USE OF PROMOREPUBLIC’S SERVICES. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.

BY ACCEPTING THIS AGREEMENT BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT BY AND BETWEEN THE CUSTOMER AND PROMOREPUBLIC OY, BUSINESS ID 2703642-5, A FINNISH COMPANY (“PromoRepublic”). IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES. The Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. This Agreement was last updated on May __, 2022. It is effective between Customer and PromoRepublic as of the date of Customer’s accepting this Agreement (the “Effective Date”).

1. CERTAIN DEFINITIONS

“Customer Content” means content, data, text, messages, and images submitted by Customer (or any User) to the Platform.

“User” means an individual who is authorized by Customer to use the Platform Services on behalf of Customer.

“Platform” means social media marketing collaboration platform currently located at https://promorepublic.com/.

“Platform Services” means some or all of the Platform functionality described in the Order Form.

“PromoRepublic Content” means content created or licensed by PromoRepublic, including images, that may be made available to Customer through the Platform Services.

“Software” means source code, object code or underlying structure, ideas or algorithms of the Platform.

2. PLATFORM ACCESS

2.1 Subject to the terms and conditions of this Agreement, PromoRepublic will provide Customer and its Users the Platform Services through access (via internet) to the Platform on a subscription basis.

2.2 The Platform is subject to modification from time to time at PromoRepublic’s sole discretion.

2.3 The Platform will be hosted on a server under the control and direction of PromoRepublic, and Customer’s access to the Platform is limited to use over the Internet. For avoidance of doubt, Customer shall not be entitled to access or receive any of the source or object code related to the Platform or Software. Notwithstanding the foregoing, PromoRepublic reserves the right to suspend Customer’s access to the Platform: (i) for scheduled or emergency maintenance of reasonable length in accordance with industry practices, or (ii) in the event Customer is in breach of this Agreement, including failure to pay any undisputed amounts due to PromoRepublic, and fails to cure such breach within thirty (30) days of receipt of written notice thereof.

2.4 PromoRepublic will make the Platform Services available and provide support to Customer for the Platform Services in accordance with the terms of the service level agreement available here.

2.5 Customer may engage PromoRepublic to provide certain professional services (“Professional Services”), such as implementations, integration, testing, custom modifications, or other consulting related to PromoRepublic’s Platform Services. Each such engagement of professional services will be described in a statement of work that must be accepted in writing by an authorized representative of each party. Customer acknowledges that any Platform modifications would likely be applicable to the Platform Services maintained and provided for all of PromoRepublic’s customers, and therefore, PromoRepublic shall own all rights, title and interest in and to any custom modifications developed, invented or made by PromoRepublic (or its contractors) under Professional Services. However, PromoRepublic grants Customer and Users a fully paid-up, revocable, non-exclusive license to use the work product of the Professional Services limited to a period while Customer and/or Users use the Platform Services.

3. RESTRICTIONS AND RESPONSIBILITIES

3.1 Customer will (a) be responsible for its compliance with this Agreement, (b) be responsible for the quality and legality of all its Customer Content and its marketing strategy, (c) prevent and be responsible for unauthorized access to or use of Platform Services through its account, and will notify PromoRepublic promptly of any such unauthorized access or use, and (d) use Platform Services only in accordance with the purpose of the Services, with this Agreement and applicable laws.

3.2 Customer shall be responsible for maintaining the security of Customer’s and Users’ account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer’s account with or without Customer’s knowledge or consent (other than any use resulting from the negligence or willful misconduct of PromoRepublic).

3.3 Customer shall comply with PromoRepublic Terms and Conditions available at the website. In the event of discrepancies between the Terms and Conditions and this Agreement, the provisions of the Agreement shall prevail.

3.4 Use of the Platform and Platform Services is subject to the applicable terms of any third party network that is being managed through the Platform (such as, Facebook, Instagram, Twitter, LinkedIn, Pinterest, Google My Business, etc.). PromoRepublic is not responsible to ensure that Customer use of the Platform Services is in compliance therewith. PromoRepublic shall not be liable to Customer if Customer Content cannot be posted or advertised on any third party network or be deleted therefrom due to restrictions implemented by this network.

4. CONFIDENTIALITY

4.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose non-public information relating to the Disclosing Party’s technology or business that such party considers to be proprietary and/or confidential (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information shall be information a party marks as Proprietary Information before disclosure or information that the other party shall reasonably believe is Proprietary Information.

4.2 The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary information solely to those employees, agents, contractors and advisors (including financial and legal advisors) with a need to have access thereto for purposes of this Agreement and who are bound by confidentiality obligations at least as restrictive as those contained in this Agreement, (iii) not to use the Proprietary Information for any purposes other than necessary to perform its obligations under this Agreement (unless otherwise authorized in this Agreement) and (iv) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, (b) was rightfully in its possession or known by it prior to receipt from the Disclosing Party, (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. Upon termination or expiration of this Agreement, or at any time either party shall so request, the other party will deliver promptly to the requesting party, or, at the requesting party’s option, will destroy, all Proprietary Information obtained hereunder (and all copies thereof) belonging to the requesting party that the other party may then possess or have under its control. In any event, PromoRepublic may collect data with respect to and report on the aggregate response rate and other aggregate measures of the Platform’s performance, and such information shall be deemed to be PromoRepublic’s information.

4.3 Customer acknowledges that PromoRepublic does not wish to receive any Proprietary Information from Customer that is not necessary for PromoRepublic to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, PromoRepublic may reasonably presume that any unrelated information not marked as confidential received from Customer is not confidential or Proprietary Information.

4.4 Both Parties will have the right to disclose the existence but not the terms (including pricing terms) and conditions of this Agreement, unless such disclosure is approved in writing by both parties prior to such disclosure, or is included in a filing required to be made by a party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirers.

4.5 PromoRepublic shall have the right to use the name and logo of Customer in its portfolio to advertise its services to third parties.

5. INTELLECTUAL PROPERTY RIGHTS

5.1 PromoRepublic (and its licensors or suppliers) owns and retains all rights (including intellectual property rights), title and interest in and to the Platform, the Software and PromoRepublic Content.

5.2 Customer grants to PromoRepublic a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer relating to the Platform Services.

5.3 Customer shall own and retain all right, title and interest in and to any Customer Content and this Agreement does not transfer ownership rights of Customer Content to PromoRepublic. The Customer Content will be treated as Customer’s Proprietary Information for all purposes under this Agreement. Subject to the foregoing, Customer hereby grants to PromoRepublic a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use and display the Customer Content for (i) the purpose of performing its obligations hereunder and (ii) for PromoRepublic’s internal business use, including, but not limited to, running analytics and diagnostics on the Platform, and modifying, improving or operating the Platform. PromoRepublic shall not use or disclose Customer Content for its own marketing or marketing of third parties. Customer Content shall be subject to PromoRepublic’s privacy policy, available at the PromoRepublic’s website. PromoRepublic is not required to keep back-up copies of any Customer Content on the Platform and makes no guarantee that any Customer Content will be permanently stored. Customer acknowledges its responsibility to independently back-up its Customer Content, to the extent permitted herein and by applicable laws and regulations.

5.4 Customer hereby represents and warrants that it has sufficient rights to allow PromoRepublic to use the Customer Content as set forth in Section 5.3. While and to the extend the Platform allows Customer to create works from Customer Content and PromoRepublic Content (“Derivative Works”), by creating any Derivative Works Customer grants PromoRepublic a non-exclusive, irrevocable, world-wide, fully-paid up, limited license to access, copy, modify, use, distribute, store, transmit, reformat, list information regarding, edit, translate, make derivative works of, publicly display and publicly perform such Derivative Works to the extent needed to provide the Platform Services, as well as for PromoRepublic’s internal business use, including, but not limited to, running analytics and diagnostics on the Platform, and modifying, improving or operating the Platform. Customer shall be solely responsible for any liability created by the creation of Derivative Works via the Services. PromoRepublic shall be responsible for procuring all rights necessary for Users to post and distribute the PromoRepublic Content in the manner contemplated by the Platform Service.

5.5 If PromoRepublic receives any notice or claim, or suspects, that any Customer Content, or activities hereunder may infringe or violate rights of a third party or any laws or regulations (a “Claim”), PromoRepublic may remove such Customer Content and, with respect to a Claim relating to Customer Content, suspend or terminate Customer’s access to the Platform Services.

6. PAYMENT OF FEES

6.1 Customer will pay PromoRepublic the applicable fees in accordance with the Order Form (the “Fees”). The price shall not be changed for the Term of the agreement unless the parties sign an additional agreement. Customer is responsible for providing complete and accurate billing and contact information to PromoRepublic and notifying PromoRepublic of any changes to such information by the parties. The price shall not be changed for the Term of the agreement unless the parties sign an additional agreement.

6.2 Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes by its own.

6.3 Unpaid Fees may be subject to a finance charge of eighteen percent (18%) per annum from the date due until the date paid. Notwithstanding anything to the contrary, in addition to any other remedy available, PromoRepublic may restrict or suspend Customer’s access to the Platform upon ten (10) days’ notice if payment is not made when due.

7. TERM AND TERMINATION

7.1 This Agreement shall come into force as from the Effective Date and shall be valid for the period indicated in the Order Form (the “Term”).

7.2 In the event of any material breach of this Agreement, the non-breaching party may terminate this Agreement upon fifteen (15) days prior written notice to the breaching party, unless the breaching party cures the breach prior to the expiration of such fifteen (15) day period. Either party may immediately terminate this Agreement, upon written notice to the other party (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party’s making an assignment for the benefit of creditors, or (iii) upon the other party’s dissolution or ceasing to do business.

7.3 The provisions of Clauses 4, 8, 9, 10, and Section 11.3. hereof shall survive the termination of this Agreement for a period of three years.

8. WARRANTY DISCLAIMER

8.1 Except as expressly set forth in this agreement, the Platform, the Platform Services, and PromoRepublic Content are provided “as-is,” without any warranties of any kind, and PromoRepublic hereby disclaims all warranties, express or implied, including all implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement.

9. LIMITATION OF LIABILITY

Except with respect to clause 10 (Indemnification), or a Party’s gross negligence or willful misconduct, (i) in no event will either Party be liable to the other Party for any indirect, punitive, incidental, special, or consequential damages arising out of or in any way connected with the use of the Platform or anything provided in connection with this Agreement, the delay or inability to use the Platform or anything provided in connection with this Agreement or otherwise arising from this Agreement, including loss of revenue or anticipated profits or lost business or lost sales, whether based in contract, tort (including negligence), strict liability, or otherwise, even if such Party has been advised of the possibility of damages, and (ii) the total liability of PromoRepublic under this Agreement will not exceed the fees paid to PromoRepublic hereunder during the 12-month period immediately preceding the date that first notice is provided by either party referencing the relevant claim hereunder. The foregoing limitations will apply notwithstanding any failure of the essential purpose of any limited remedy.

10. INDEMNIFICATION

10.1 PromoRepublic shall indemnify, defend and hold harmless Customer from any liabilities arising or resulting from any claim that the Software or PromoRepublic Content infringes any intellectual property rights of any third party. Notwithstanding the foregoing, PromoRepublic shall have no obligation to the extent any such claim is (i) based upon any Derivative Work, (ii) Customer’s or any Users’ combination, operation or use of the Platform with any content, applications or services not supplied by PromoRepublic or (iii) based on the use of the Platform Services in a manner that is not in compliance with this Agreement.

10.2 Customer shall indemnify, defend and hold harmless PromoRepublic from any and all liabilities arising or resulting from (a) any Customer or its Users misuse of the Platform Services, or (b) any claim that the Customer Content or any modifications by Customers to PromoRepublic Content (and/or use or distribution thereof in accordance with this Agreement) infringes the intellectual property rights of any third party.

10.3 The indemnified party shall provide the indemnifying party with: (i) prompt written notice upon learning of any such potential claim or claims (provided, however, that failure to give prompt notice will not relieve the indemnifying party of any liability hereunder); (ii) sole control of the defense, investigation and settlement of any such claim, provided that an indemnifying party will not settle any such action without the written consent of the indemnified party (which consent will not be unreasonably withheld or delayed); and (iii) reasonable cooperation (at the indemnifying party’s sole expense) in the defense, investigation and settlement of any such claim.

11. MISCELLANEOUS

11.1 No agency, membership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other party in any respect whatsoever.

11.2 All notices under this Agreement will be in writing and shall be delivered by email.

11.3 This Agreement will be governed by the laws of Finland without regard to its conflict of laws provisions.