Welcome to Denim Social, a product of Denim Software, Inc.
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.
We expressly reserve the right to change these Terms of Service from time to time upon reasonable notice to you (including, without limitation, via electronic notification or notification on the Website). You agree that it is your responsibility to review these Terms of Service from time to time and to familiarize yourself with any modifications. Your continued use of this Website or any of the Software Services after notification regarding such modifications will constitute acknowledgement of the modifications and agreement to abide and be bound by the revised Terms of Service.
“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.
“Authorized User” means each of the individuals authorized to use the Software Services with his or her unique Access Credentials. Customer shall be entitled to no more Authorized Users than the number of Seats Customer has purchased under its Plan, which may be increased, from time to time, in accordance with the terms that follow.
“Average Monthly Subscription Fee” means the average of all of the monthly Subscription Fees for the then-current Term of this Agreement.
“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 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 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.
“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.
“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.
“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.
“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.
“Plan Level” means the set of features or access to or use of Software Services made available to you by Denim Social, as described in the Pricing Agreement or as may be defined elsewhere by Denim Social.
“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.
“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.
“Seat” means an entity that has connected social profiles within the Denim Social platform; it may be a person, a physical location, or a brand. A Seat is also required for administrative roles without connected profiles that administer other Seats within an account (e.g., Compliance).
“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.
3. PERFORMANCE BY DENIM SOCIAL.
3.1. During the Term, and beginning on the Services Start Date (as stated on the Pricing Agreement, if later than the Effective Date), Denim Social shall perform and provide the Software Services in accordance with the Plan Level and as more specifically set forth in the Pricing Agreement signed by the Parties. We reserve the sole right to either modify or discontinue the Software Services made available at any time, including by by modifying our Plan Levels with or without notice to you; however, we will use reasonable efforts to provide you with advance notice if any of the changes, in our sole judgment, materially adversely affect your use of the Software Service. We do not guarantee that a specific Plan Level or rate will always be available outside of the Term of an Agreement.
3.2. Mid-Plan Upgrades. Customer may, at any time during the Term, request additional Seats, premium add-ons, and Plan upgrades (“Upgrades”). Such Upgrades shall become part of the Agreement and continue through the duration of the Term and be subject to additional cost described further in Section 5.
4. TERMS OF SERVICE.
4.1. 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.
4.2. 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. Moreover, Customer expressly acknowledges that the Software Services rely in part on access to third-party equipment (including social media services) outside of Denim Social’s control. 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.
4.3. 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.
4.4. 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.
4.5. 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.
4.6. 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.
4.7. 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.
4.8. 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.
4.9. 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”).
4.10. 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:
- 4.10.1. Copy, modify or create derivative works or improvements of the Software Services or Denim Social Materials;
- 4.10.2. 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;
- 4.10.3. 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;
- 4.10.4. 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;
- 4.10.5. 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;
- 4.10.6. 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;
- 4.10.7. 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;
- 4.10.8. 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;
- 4.10.9. 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
- 4.10.10. Otherwise access or use the Software Services or any Denim Social Materials beyond the scope of the authorization granted under Section 4.1.
4.11. Corrective Action and Notice. In the event Customer becomes aware of any actual or threatened activity prohibited by Section 4.10, 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. Should Denim Social become aware of Customer (including Authorized Users), by sharing Access Credentials or through other means, exceeding the number of Seats granted to Customer under the Agreement, Denim Social may, and Customer expressly consents to, charge Customer through the remainder of the Term an increased Subscription Fee prorated for each excessive Seat used by Customer. For clarity, this applies when the Customer or its Authorized Users, through the means described above, increase the number of Authorized Users above the number of Seats Customer has purchased under its Agreement.
4.13. Intellectual Property Rights.
- 4.13.1. 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 4.1 (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.
- 4.13.2. 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.
- 4.13.3. 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 4.13.4; (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.
- 4.13.4. 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.
- 4.13.5 Consent to Use of Customer Intellectual Property. Customer grants to Company a non-exclusive, non-transferable license to use the trademarks, service marks, logos and trade names owned by Customer in content created by Company.
4.14. 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.
5. UNIVERSAL TERMS.
5.1. Fees and Payment Terms.
- 5.1.1. Subscription 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 and not subject to cancelation by Customer. Unless otherwise set forth in the Pricing Agreement, Denim Social may, in its sole discretion, increase the Subscription Fee by up to ten percent (10%) at the commencement of each Renewal Term.
- 5.1.2. Additional Fees. In addition to the Subscription Fee described above, Customer shall pay additional fees at the initiation of the Term and as necessary from time to time for Customer’s use of the Denim Social platform, Seat setup (including additional Seats, as may be added), service fees associated with the specific Software Services Customer selects, and any other customizations agreed upon by Customer, which fees shall be reflected in the invoice in which they become payable.
- 5.1.3. Discounts. Discounts, including partner discounts, if any, are conditional upon Customer’s continued eligibility (including, if applicable, continued membership in the partner organization) and will be verified by Denim Social annually. If Customer is no longer eligible for a discount reflected in a Pricing Agreement, Customer will be responsible for the undiscounted total cost for the remainder of the Term.
- 5.1.4. 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, without offset or deduction, 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.
- 5.1.5. Payment Method. Unless otherwise set forth in the Pricing Agreement, all payment must be made via ACH. Credit card payments, if allowed, shall be subject to a three percent (3%) processing fee.
5.2. Term. Unless otherwise set forth in the Pricing Agreement, the initial term of this Agreement commences as of the Effective Date and, subject to early termination in accordance with Section 5.3, will continue in effect for a period of three (3) years following commencement of the Software Services (“Services Start Date”; such period, the “Initial Term”). This Agreement will automatically renew for additional successive one- (1) year terms unless either Party gives the other Party written notice of non-renewal no fewer than 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.
5.3. Early Termination.
- 5.3.1. Either Party may terminate this 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.
- 5.3.2. Denim Social may terminate this Agreement immediately upon notice to Customer in the event Customer or any of its Authorized Users breaches Section 4.10 of this Agreement.
- 5.3.3. 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.
5.4. Effect of Expiration or Termination.
- 5.4.1. Revocation of License and Termination of Service. Upon any expiration or termination of this Agreement, Customer’s right to access the Software Services and all rights granted herein shall immediately cease. 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. 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 5.3.
- 5.4.2. 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.
- 5.5.1. 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 5.5.2, “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.
- 5.5.2. 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.
- 5.5.3. Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
- 126.96.36.199. 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;
- 188.8.131.52. 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 5.5.3; 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 5.5.3;
- 184.108.40.206. 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
- 220.127.116.11. Ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 8.
- 5.5.4. 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 5.5; 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.
5.6. 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 5.6 shall not apply to general advertising not targeted specifically at the employees of the Parties or any Subcontractor.
5.7. Representations and Warranties.
- 5.7.1. 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.
- 5.7.2. 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.
- 5.7.3. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 5.7.1, 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, INCLUDING THEIR CONTINUED AND/OR UNINTERRUPTED AVAILABILITY, IS STRICTLY BETWEEN CUSTOMER AND THE THIRD PARTY OWNER OR DISTRIBUTOR OF THE THIRD PARTY MATERIALS.
5.8. Limitations of Liability.
- 5.8.1. 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.
- 5.8.2. 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 PAID BY CUSTOMER. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- 5.9.1. 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 5.9.1 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.
- 5.9.2. 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:
- 18.104.22.168. Customer Data, including any Processing of Customer Data by or on behalf of Denim Social in accordance with this Agreement;
- 22.214.171.124. 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;
- 126.96.36.199. Allegations of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants or obligations under this Agreement; or
- 188.8.131.52. 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.
5.10. Force Majeure. In the event that either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (except payment obligations) due to acts of God, acts or decisions of governmental authorities or regulatory agencies, riots, strikes, acts of war, epidemics, pandemics, fire, flood, communication line or equipment failures, power failures, or any other cause beyond its reasonable (“Force Majeure”), the affected Party shall give written notice thereof to the other Party and its performance shall be extended for the period of delay or inability to perform due to such occurrence.
5.11.0 General Provisions.
- 5.11.1. Notices. All notices, permissions, and approvals required under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email. Notices to Denim Social shall be sent to firstname.lastname@example.org. All notices from Denim Social to Customer related to specific rights or obligations under this Agreement will be sent via email to the email address Customer has provided to Denim Social, which may be updated from time to time. Denim Social may also post notices to the Website which affect Customer’s rights or obligations hereunder, which shall be effective when posted, regardless of whether Customer reads the notice.
- 5.11.2. 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.
- 5.11.3. Waiver. The failure of either Party to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision.
- 5.11.4. 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 4.13.4, Section 4.10, Section 5.1, Section 5.4, Section 5.5, Section 5.6, Section 5.7, Section 5.8, Section 5.9, Section 5.10, and all of Section 5.11.
- 5.11.5. Assignment; Binding Effect. You may not assign any of your rights or obligations hereunder, whether by operation of law, or otherwise, without Denim Social’s prior written consent (which shall not be unreasonably withheld). Denim Social may freely assign this Agreement, or any of its rights and privileges under it, without your consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Denim Social’s asserts, or to an affiliate, or in connection with a change in control. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors, representatives, and permitted assigns.
- 5.11.6. Severability. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law, including, but not limited to, the warranty disclaimers and liability limitations contained herein, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in effect.
- 5.11.7. 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.
- 5.11.8. 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.
- 5.11.9. 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.
5.11.10. 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.