Denim Software Inc. Terms of Service
Welcome to Denim Social, a product of Denim Software, Inc.
These Terms of Service (the “Agreement”), is a legal agreement between you individually if you are agreeing to it in your own capacity, or if you are authorized to acquire the Services on behalf of your organization, between the entity for whose benefit you act (“you”, “your” or “Customer”), and Denim Software, Inc. (“Denim Social) (together the “Parties” and individually a “Party”).
BY INDICATING YOUR ACCEPTANCE IN THE PRICING AGREEMENT, OR BY DOWNLOADING, INSTALLING, ACTIVATING OR USING THE SOFTWARE SERVICES, CUSTOMER IS AGREEING TO BE BOUND BY THIS AGREEMENT AND, IF YOU ARE ACTING ON BEHALF OF AN ORGANIZATION, THAT YOU ARE AUTHORIZED TO DO SO.
“Access Credentials” means any username, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Software Services.
“Action” has the meaning set forth in Section 4.9.1.
“Authorized User” means each of the individuals authorized to use the Software Services with his or her unique Access Credentials.
“Average Monthly Subscription Fee” means the average of all of the monthly Subscription Fees for the then-current Term of this Agreement.
“Confidential Information” has the meaning set forth in Section 4.5.1.
“Customer Creative” means, without limitation, any marketing campaigns, slogans, artwork, written materials, drawings, photographs, graphic materials, music, transcriptions or other materials produced by Customer for use by the Customer, its Authorized Users and Denim Social pursuant to this Agreement.
“Customer Data” means data, in any form or medium, that Customer and/or its Authorized Users input into the Software as part of their use of the Software Services or that incorporates or is derived from the Processing of such information, data or content by or through the Software Services.
“Customer Failure” has the meaning set forth in Section 3.9.
“Customer Indemnitee” has the meaning set forth in Section 4.9.1.
“Customer Systems” means the Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services.
“Denim Social Disabling Device” means any software, hardware or other technology, device or means (including any back door, time bomb, time out, drop dead device, software routine or other disabling device) used by Denim Social or its designee to disable Customer’s or any Authorized User’s access to or use of the Software Services automatically with the passage of time or under the positive control of Denim Social or its designee.
“Denim Social Indemnitee” has the meaning set forth in Section 4.9.2.
“Denim Social Materials” means the Software Services, Documentation and Denim Social Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Denim Social or any Subcontractor in connection with the Software Services or otherwise comprise or relate to the Software Services or Denim Social Systems.
“Denim Social Systems” means the information technology infrastructure used by or on behalf of Denim Social in performing the Software Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Denim Social or through the use of third-party services.
“Disclosing Party” has the meaning set forth in Section 4.5.1.
“Documentation” means any manuals, instructions or other documents or materials that Denim Social provides or makes available to Customer or its Authorized Users in any form or medium and which describes the functionality, components, features or requirements of the Software Services or Denim Social Materials, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
“Force Majeure Event” has the meaning set forth in Section 4.10.
“Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent Customer or any Authorized User from accessing or using the Software Services as intended by this Agreement. Harmful Code does not include any Denim Social Disabling Device.
“Hosted Services” means electronic access to the Software through the internet.
“Initial Term” has the meaning set forth in Section 4.2.
“Ideas” has the meaning set forth in Section 3.13.2.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
“Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Notices” has the meaning set forth in Section 4.11.1.
“Permitted Use” means use of the Software Services by Authorized Users, each using his or her respective Access Credentials, solely in or for Customer’s business operations.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.
“Personal Information” means any information that, individually or in combination, does or can identify a specific Person or by or from which a specific Person may be identified, contacted or located.
“Pricing Agreement” has the meaning set forth in Section 2.
“Process” means to take any action or perform any operation or set of operations that the Software Services are capable of taking or performing on any data, information or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or block, erase or destroy. “Processing” and “Processed” have correlative meanings.
“Receiving Party” has the meaning set forth in Section 4.5.1.
“Renewal Term” has the meaning set forth in Section 4.2.
“Representatives” means, with respect to a Party, that Party’s employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors and legal advisors.
“Resultant Data” means data and other information relating to the provision, use of the Software and performance of the Software Services, including Customer Data, that is de-identified and recorded by Denim Social.
“Software” means the social media management/compliance/advertising customization and localization software, and all new versions, updates, revisions, improvements and modifications thereof, provided to Customer by Denim Social through the Hosted Services.
“Software Services” means the Hosted Services and Software, and any other services contained in the Pricing Agreement.
“Subcontractor” has the meaning set forth in Section 3.4.
“Subscription Fee” has meaning set forth in Section 4.1.1.
“Term” has the meaning set forth in Section 4.2.
“Third Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment or components of or relating to the Software Services that are not proprietary to Denim Social.
2. Statement of Work.
During the Term, Denim Social shall perform and provide the Software Services as more specifically set forth in the Pricing Agreement signed by the Parties, which is attached hereto as Exhibit A and incorporated herein by this reference. From time to time, the Parties may execute additional Pricing Agreements, each of which shall be numbered chronologically, as Exhibit A-1, A-2, etc., appended to this Agreement upon their execution and incorporated herein by this reference. Each Pricing Agreement shall identify the number of Authorized Users, Subscription Fees and any other compensation to be paid; but unless otherwise set forth in the Pricing Agreement, shall not modify any other term or condition of this Agreement, and without the need for reference shall incorporate all terms and conditions of this Agreement. In the event there is a conflict between any Pricing Agreement and the Agreement, the terms and conditions of the Agreement prevail.
3. Terms of Service.
3.1. Permitted Use of Software Services. During the Term, Denim Social hereby authorizes Customer to access and use the Software through the Licensed Application and Hosted Services solely for the Permitted Use by Authorized Users, and contingent upon the conditions and limitations set forth in this Agreement. This authorization is non-exclusive, revocable and non-transferable.
3.2. Availability. Denim Social will use commercially reasonable efforts to make the Software Services available at all times. However, Denim Social makes no guarantee of uninterrupted use or operation of the Software Services. Denim Social may temporarily or permanently suspend the Software Services, in whole or in part, where required by law, in the case of security violations or threats, for service improvements, maintenance or repair, for nonpayment of Subscription Fees, or for any other reason deemed necessary or desirable by Denim Social or beyond Denim Social’s control.
3.3. Denim Social Control. Denim Social has and will retain sole control over the operation, provision, maintenance and management of the Software Services and Denim Social Materials, including the: (i) Denim Social Systems; (ii) location(s) where any of the Software Services are performed, including in and outside of the United States; (iii) selection, deployment, modification and replacement of the Software Services; and (iv) performance of maintenance, upgrades, corrections and repairs to the Software Services.
3.4. Subcontractors. Denim Social may, from time to time in its sole discretion, engage third parties to market, sell and/or perform certain services (each, a “Subcontractor”) in connection with performance of this Agreement.
3.5. Improvements and Updates. Denim Social reserves the right, in its sole discretion, to make any changes to the Software Services, without the consent of Customer, that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of the Software Services to its customers, (ii) the competitive strength of or market Software Services; or (iii) the Software Services’ cost efficiency or performance; or (b) to comply with applicable Law.
3.6. Access and Security. Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Software Services; (b) ensure that each Authorized User has his or her own Access Credentials and that Access Credentials are, in no event, shared by more than one Person; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Software.
3.7. Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Software Services; (c) Customer’s Systems (d) the security and use of Customer’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Software Services and Denim Social Materials directly or indirectly by or through the Customer’s Systems or its or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
3.8. Customer Obligations. Customer shall at all times during the Term (i) maintain and operate in good repair all Customer Systems on or through which the Software Services are accessed or used; (ii) provide Denim Social with such access to Customer’s premises and Customer Systems as is necessary for Denim Social to perform the Software Services; and (iii) provide cooperation and assistance as Denim Social may reasonably request to enable Denim Social to exercise its rights and perform its obligations under and in connection with this Agreement.
3.9. Effect of Customer Failure or Delay. Denim Social is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement, including failure of Customer’s Systems (each, a “Customer Failure”).
3.10. Prohibited Uses. Customer shall not, and shall not permit any other Person to, access or use the Software Services except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not:
- 3.10.1. Copy, modify or create derivative works or improvements of the Software Services or Denim Social Materials;
- 3.10.2. Rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Software Services or any Denim Social Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
- 3.10.3. Reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Software Services or any Denim Social Materials, in whole or in part;
- 3.10.4. Bypass or breach any security device or protection used by the Software Services or any Denim Social Materials or access or use the Software Services or Denim Social Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;
- 3.10.5. Input, upload, transmit or otherwise provide to or through the Software Services or any Denim Social Materials, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;
- 3.10.6. Damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Software Services or any Denim Social Materials, Denim Social Systems, or Denim Social’s provision of the Software Services;
- 3.10.7. Remove, delete, alter or obscure any trademarks, Documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Software Services or any Denim Social Materials, including any copy thereof;
- 3.10.8. Access or use the Software Services or any Denim Social Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable Law;
- 3.10.9. Access or use the Software Services or any Denim Social Materials for purposes of competitive analysis of the Software Services, the development, provision or use of a competing software service or product or any other purpose that is beyond the Permitted Use; or
- 3.10.10. Otherwise access or use the Software Services or any Denim Social Materials beyond the scope of the authorization granted under Section 3.1.
3.11. Corrective Action and Notice. In the event Customer becomes aware of any actual or threatened activity prohibited by Section 3.10, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Software Services and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Denim Social of any such actual or threatened activity.
3.13. Intellectual Property Rights.
- 3.13.1. Services and Materials. Denim Social is and will remain the sole and exclusive owner of all of the elements of the Software Services and all Denim Social Materials, including all Intellectual Property Rights therein. Customer has no right, license or authorization with respect to any of the Software Services or Denim Social Materials (including Third Party Materials) whatsoever, except as expressly set forth in Section 3.1 (or the applicable third-party license, if any). All other rights in and to the Software Services and Denim Social Materials (including Third Party Materials) are expressly reserved by Denim Social and the respective third-party licensors.
- 3.13.2. Ideas and Suggestions. Denim Social wishes to continually expand and improve the Software Services. Denim Social welcomes any ideas, suggestions, complaints, or feedback, related to the Software Services or for upgrades, updates, improvements, new features or functions thereto (“Ideas”). If Customer provides Denim Social with any Ideas, whether orally, in writing, or in any other way, Customer grants Denim Social a non-exclusive, worldwide, royalty-free, sub-licensable and non-revocable license to develop, make, reproduce, import, modify, make derivative works of, sell, and offer to sell Ideas as part of Denim Social’s technology, products or services. Customer shall not knowingly provide Denim Social with any Ideas that are subject to third party intellectual property rights or that include or reveal any confidential information of any person.
- 3.13.3. Customer Data and Customer Creative. Customer is and will remain the sole and exclusive owner of all right, title and interest in and to (a) all Customer Data and Customer Creative, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 3.13.4; (b) all information, instructions and materials provided to Denim Social by or on behalf of Customer in connection with the Software Services; and (c) Customer’s Systems.
- 3.13.4. Consent to Use Customer Data and Customer Creative. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data and Customer Creative to Denim Social and its Subcontractors, as applicable, as is necessary or useful to perform the Software Services, to enforce this Agreement and to exercise Denim Social’s rights hereunder. In addition, Customer hereby unconditionally and irrevocably grants to Denim Social, a license to use the Resultant Data in Denim Social’s sole discretion.
3.14. Suspension or Termination of Software Services. Denim Social may, directly or indirectly, and by use of a Denim Social Disabling Device or any other lawful means, suspend, terminate or otherwise deny Customer’s, any Authorized User’s or any other Person’s access to or use of all or any part of the Software Services without incurring any resulting obligation or liability, if: (a) Denim Social receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Denim Social to do so; or (b) Denim Social believes, in its discretion, that: (i) Customer or any Authorized User has failed to comply with, any material term of this Agreement, or accessed or used the Software Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with this Agreement; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with any of the Software Services; or (iii) this Agreement expires or is terminated.
4. Universal Terms.
4.1. Fees and Payment Terms.
- 4.1.1. User Fee. In consideration for the license to use the Licensed Application granted herein and the provision of the Software Services, Customer shall pay Denim Social the subscription fees as set forth in the applicable Pricing Agreement (“Subscription Fee”). All Subscription Fees paid under this Agreement shall be non-refundable. Unless otherwise set forth in the Pricing Agreement, the Subscription Fee shall be automatically increased by ten percent (10%) at the commencement of each Renewal Term.
- 4.1.2. Payment Terms. Unless otherwise set forth in the Pricing Agreement, Denim Social will provide Customer with an annual invoice for the Subscription Fees, which shall be paid by Customer within thirty (30) days of the issuance of the invoice. Denim Social may charge interest on any past due amount at the rate of one- and one-half percent (1.5%) per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law. In addition, Customer shall reimburse Denim Social for all costs incurred by Denim Social in collecting any past due amounts, including attorneys’ fees, court costs and collection agency fees; and in the event any past due amount is not paid within sixty (60) days of notice thereof, Denim Social may suspend performance of the Software Services until all past due amounts have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension.
4.2. Term. Unless otherwise set forth in the Pricing Agreement, the initial term of this Agreement commences as of the Effective Date and, unless terminated earlier in accordance with Section 4.3 will continue in effect for a period of three (3) years (the “Initial Term”). This Agreement will automatically renew for additional successive one (1) year terms unless earlier terminated pursuant to Section 4.3 or either Party gives the other Party written notice of non-renewal at least sixty (60) days prior to the expiration of the then-current term (“Renewal Term” and together with the Initial Term, the “Term”). Each Renewal Term shall commence on the first day of the calendar month on which the Renewal Term commences. In the event a Pricing Agreement extends beyond the Term of this Agreement, this Agreement shall automatically be extended for the duration of the Pricing Agreement.
4.3. Early Termination. During the Term, the Parties may terminate this Agreement as follows:
- 4.3.1. Either Party may terminate this Agreement or any Pricing Agreement if the other party materially breaches any provision of this Agreement and fails to cure such breach within thirty (30) days of receiving notice thereof from the non-breaching Party.
- 4.3.2. In the event Customer or any of its Authorized Users breaches Section 3.10 of this Agreement, this Agreement will terminate, effective immediately, upon notice by Denim Social to Customer.
- 4.3.3. Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
4.4. Effect of Expiration or Termination.
- 4.4.1. Revocation of License and Termination of Service. Upon any expiration or termination of this Agreement, Customer’s right to access the Software Services shall immediately cease and all rights granted herein shall immediately cease. Denim Social shall not be liable to Customer for any damage arising from or related to the termination of this Agreement in accordance with Section 4.3. Upon termination of this Agreement Denim Social shall inactivate Customer’s and its Authorized Users’ Access Credentials, terminating Customer’s and its Authorized Users’ access to the Software Services.
- 4.4.2. Payment of Subscription Fees. Customer shall pay to Denim Social any Subscription Fees due to Denim Social up to the effective date of termination, including all previously-accrued but not yet paid Subscription Fees.
- 4.5.1. Confidential Information. In connection with this Agreement each Party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other Party (as the “Receiving Party”). Subject to Section 4.5.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as “confidential.” Without limiting the foregoing, all Denim Social Materials are the Confidential Information of Denim Social.
- 4.5.2. Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
- 4.5.3. Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
- 220.127.116.11. Not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
- 18.104.22.168. Not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 4.5.3; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 4.5.3;
- 22.214.171.124. Safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its sensitive information and in no event less than a reasonable degree of care; and
- 126.96.36.199. Ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 8.
- 4.5.4. Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under this Section 4.5; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.
4.6. Non-Solicitation. During the Term and for one (1) year thereafter, the Parties shall not, and shall not assist any other Person to, directly or indirectly recruit or solicit for employment or engagement as an independent contractor any Person then or within the prior twelve (12) months employed or engaged by the other Party or any Subcontractor and involved in any respect with the performance of this Agreement; provided, however, that this Section 4.6 shall not apply to general advertising not targeted specifically at the employees of the Parties or any Subcontractor.
4.7. Representations and Warranties.
- 4.7.1. Denim Social Representations, Warranties and Covenants. Denim Social represents, warrants and covenants to Customer that Denim Social will perform the Software Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.
- 4.7.2. Customer Representations, Warranties and Covenants. Customer represents, warrants and covenants to Denim Social that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Denim Social and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights or any privacy or other rights of any third party or violate any applicable Law.
- 4.7.3. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 4.7.1, ALL SOFTWARE SERVICES AND DENIM SOCIAL MATERIALS ARE PROVIDED “AS IS” AND DENIM SOCIAL HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND DENIM SOCIAL SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, DENIM SOCIAL MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD PARTY OWNER OR DISTRIBUTOR OF THE THIRD PARTY MATERIALS.
4.8. Limitations of Liability.
- 4.8.1. EXCLUSION OF DAMAGES. IN NO EVENT WILL DENIM SOCIAL BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SOFTWARE SERVICES, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- 4.8.2. CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF DENIM SOCIAL UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE AVERAGE MONTHLY SUBSCRIPTION FEE. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- 4.9.1. Denim Social Indemnification. Denim Social shall indemnify, defend and hold harmless Customer and Customer’s officers, directors, employees, agents, permitted successors and permitted assigns (each, a “Customer Indemnitee”) from and against any and all Losses incurred by such Customer Indemnitee arising out of or relating to any claim, suit, action or proceeding (each, an “Action”) by a third party to the extent that such Losses arise from any allegation in such Action that Customer’s or an Authorized User’s use of the Software Services (excluding Customer Data and Third Party Materials) in compliance with this Agreement infringes a U.S. Intellectual Property Right.
THIS SECTION 4.9.1 SETS FORTH CUSTOMER’S SOLE REMEDIES AND DENIM SOCIAL’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SOFTWARE SERVICES AND DENIM SOCIAL MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT.
- 4.9.2. Customer Indemnification. Customer shall indemnify, defend and hold harmless Denim Social and its Subcontractors, officers, directors, employees, agents, successors and assigns (each, a “Denim Social Indemnitee”) from and against any and all Losses incurred by such Denim Social Indemnitee in connection with any Action by a third party that/to the extent that such Losses arise out of or relate to any:
- 188.8.131.52. Customer Data, including any Processing of Customer Data by or on behalf of Denim Social in accordance with this Agreement;
- 184.108.40.206. Any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Customer or any Authorized User, including Denim Social’s compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Denim Social;
- 220.127.116.11. Allegations of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants or obligations under this Agreement; or
- 18.104.22.168. Gross negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement.
4.10. Force Majeure. In no event will either Party be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, (except for any payment obligation), when and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law, any action taken by a governmental or public authority, or national or regional shortage of adequate power, telecommunications or transportations. Either Party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of thirty (30) days or more.
4.11.0 General Provisions.
- 4.11.1. Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; one day after transmittal, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Notices shall be sent to the following addresses unless such information is changed and notice is provided herein. In addition, Customer hereby authorizes Denim Social to provide Customer any non-legal information and notices regarding the operation of the Software Services (“Notices”) in electronic form, including: (a) via email if Customer has provided Denim Social with a valid email address; or (b) by posting the Notice on a web or mobile page designated by Denim Social for this purpose. The delivery of any Notice is effective when sent or posted by Denim Social, regardless of whether Customer reads the Notice or actually receives the email.If to Denim Social:
Denim Software, Inc.
Address: 555 Washington Avenue, Suite 310, St. Louis, MO 63101
With copy to:
Stock Legal, LLC
Attn: Sara Stock
Address: 4512 West Pine Blvd., St. Louis, Missouri 63108
If to Customer:
Customer address is as stated in the Pricing Agreement.
- 4.11.2. Entire Agreement; Modification. This Agreement constitutes the entire agreement among the Parties with respect to the Software Services and supersedes all prior agreements and understandings, both written and oral, among the Parties with respect to the subject matter hereof. This Agreement may be amended or modified only by an instrument in writing duly executed by the Parties to this Agreement.
- 4.11.3. Waiver. No waiver by any Party of any term or condition of this Agreement, in any one or more instances, shall be deemed to be or construed as a waiver of the same or any other term or condition of this Agreement on any future occasion. All remedies, either under this Agreement or by law or otherwise afforded, will be cumulative and not alternative.
- 4.11.4. Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the Parties in this Agreement that, by their nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 3.13.4, Section 3.10, Section 4.1, Section 4.4, Section 4.5, Section 4.6, Section 4.7, Section 4.8, Section 4.9, Section 4.10, and all of Section 4.11.
- 4.11.5. No Assignment; Binding Effect. Neither this Agreement nor any right, interest or obligation hereunder may be assigned (by operation of law or otherwise) by any Party without the prior written consent of the other Party and any attempt to do so will be void; provided, however, that Denim Social may, upon notice to the Customer, but without being obligated to obtain the Customer’s consent, assign this Agreement or any of its rights, interests or obligations hereunder to an affiliate or purchaser of Denim Social. Subject to the preceding sentence, this Agreement is binding upon, inures to the benefit of and is enforceable by the Parties hereto and their respective successors and assigns.
- 4.11.6. Severability. Any term or provision of this Agreement that is invalid, illegal or unenforceable in any situation in any jurisdiction shall not affect the validity, legality or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If such invalidity, illegality or unenforceability is caused by length of time or size of area, or both, the otherwise invalid provision shall be, without further action by the Parties, automatically amended to such reduced period or area as would cure such invalidity, illegality or unenforceability; provided, however, that such amendment shall apply only with respect to the operation of such provision in the particular jurisdiction in which such determinations is made.
- 4.11.7. Attorneys’ Fees and Costs. In the event that Denim Social prevails in any legal proceeding brought for breach of this Agreement by either Party, Denim Social shall be entitled to recover its reasonable attorneys’ fees, costs and other expenses.
- 4.11.8. Governing Law. This Agreement and the rights and obligations of the Parties hereunder are to be governed by and construed and interpreted in accordance with the laws of the State of Missouri applicable to contracts made and to be performed wholly within Missouri, without regard to choice or conflict of laws rules.
- 4.11.9. Submission to Jurisdiction. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO MAY BE BROUGHT IN THE COURTS OF THE COUNTY OF ST. LOUIS, STATE OF MISSOURI OR ANY COURT OF THE UNITED STATES OF AMERICA FOR THE EASTERN DISTRICT OF MISSOURI AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY ACCEPTS FOR ITSELF, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF SUCH COURTS. THE PARTIES IRREVOCABLY WAIVE ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH ANY OF THEM MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS. THE PARTIES IRREVOCABLY CONSENT TO THE SERVICE OF PROCESS OF ANY OF SUCH COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE COMPANY AND THE CUSTOMER, SUCH SERVICE TO BECOME EFFECTIVE THIRTY (30) DAYS AFTER SUCH MAILING.
- 4.11.10. Interpretation. The Parties hereto agree that this Agreement is the product of negotiation between sophisticated Parties and individuals, all of whom were represented by, or had an opportunity to be represented by legal counsel, and each of whom had an opportunity to participate in, the drafting of each provision hereof. Accordingly, ambiguities in this Agreement, if any, shall not be construed strictly or in favor of or against any Party hereto but rather shall be given a fair and reasonable construction.
- 4.11.11. Counterparts; Electronic Execution. Except to the extent that Denim Social is expressly precluded by law, Denim Social reserves the right to make changes to this Agreement either to reflect changes in business practices, or to reflect changes in or required by law, by providing Customer with reasonable Software Services for more than thirty (30) days after Notice of the change has been given, Customer shall be deemed to have accepted such change.