Last Updated: Thursday, June 7, 2018
“7Geese” has the meaning set out in an Order Form.
“Agreement” has the meaning set out in an Order Form.
“Annual Subscription Fee” means the annual fees (as specified in the Order Form) payable by Customer to 7Geese for the right to receive access to the Service.
“Customer” means the person accessing, downloading, installing or otherwise using the Service as set out in an Order Form.
“Customer Data” means all data or information submitted by Customer or its Users to the Service.
“Deliverable” means any software, studies, documentation or other materials prepared by 7Geese for Customer as described in an Order Form.
“Effective Date” has the meaning set out in an Order Form.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Order Form” means an order form executed by Customer for the use of the Service, including any schedules, exhibits, or addendums attached thereto, that incorporates these 7Geese Enterprise Terms by reference.
“Professional Services” means the consulting services and other professional services as described in an Order Form, including (if expressly described in an Order Form), without limitation, instruction and training on the use of 7Geese products and services, evaluation, design, and implementation of system architectures, the development of Deliverables, custom developments, and Service deployment consultations.
“Service” means 7Geese’s cloud-based social performance management platform, as further described by the User Guide.
“Term” has the meaning ascribed to that term in Section 11.1.
“User” means an individual or entity who has been supplied a user account and password by Customer or by 7Geese at Customer’s request or by themselves by signing up with a verified company email address for using the Service.
“User Guide” means the online user guide for the Service, accessible via www.support.7geese.com, as updated by 7Geese from time to time.
2. Grant of License.
2.1 Provision of Service. Conditioned on the provisions in this Section 2 and the other terms and conditions of this Agreement and payment of the applicable fees, 7Geese shall make the Service available to Customer during the Term for Customer’s internal business use.
2.2 User Accounts. User accounts are for use by designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Service.
3. Use of the Service.
3.1 7Geese Responsibilities. 7Geese shall: (i) in addition to its confidentiality obligations hereunder, not use or modify the Customer Data (except for the purposes of performing its obligations or exercising its rights under this Agreement) or disclose the Customer Data to anyone other than Customer and the applicable Users; (ii) use commercially reasonable efforts to maintain the security and integrity of the Service and the Customer Data; (iii) provide basic support to Customer’s Users, at no additional charge; and (iv) use commercially reasonable efforts to make the Service available twenty-four (24) hours a day, seven (7) days a week, except for: (a) planned downtime (of which 7Geese shall give at least eight (8) hours’ notice via the Service); or (b) any unavailability caused by circumstances beyond 7Geese’s reasonable control, including, without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving 7Geese employees), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within 7Geese’s possession or reasonable control, and denial of service attacks. 7Geese will assign a 7Geese “Customer Success Manager” to assist Customer with set-up, training, on-boarding and ongoing support of the Service.
3.2 Customer Responsibilities. Customer is responsible for all activities that occur in User accounts and for Users’ compliance with this Agreement and the User Guide. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify 7Geese promptly of any such unauthorized access or use; (iii) manage Users and their access to company email as the Service is design in a way that anyone with a verifiable company email address can sign up to use the Service or re-activate their terminated account if they have access to their company email; and (iv) comply with all applicable local, provincial, state, federal and foreign laws in using the Service.
3.3 Use Guidelines. Customer shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party; (ii) use the Service to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) use the Service to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including, without limitation, material that is harmful to children or violates third-party privacy or publicity rights; (iv) use the Service to send or store Malicious Code; (v) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (vi) attempt to gain unauthorized access to the Service or its related systems or networks.
3.4 Professional Services. If Professional Services are set out in an Order Form, 7Geese shall use commercially reasonable efforts to provide such Professional Services (including, without limitation, the development of Deliverables, if any). Customer acknowledges and agrees that 7Geese may retain the services of independent consultants from time to time to perform, or to assist 7Geese in performing, the Professional Services. Customer acknowledges and agrees that 7Geese’s performance of the Professional Services is dependent on Customer’s performance of certain activities and tasks as may be reasonably requested by 7Geese to facilitate 7Geese’s timely performance of the Professional Services, including, without limitation, providing 7Geese with access to sufficiently qualified employees of Customer, Customer facilities, or working space or office support at such Customer facilities (“Dependencies”). 7Geese will not be liable for any delay or non-performance of any Professional Service caused by Customer’s non-performance or inadequate performance of any Dependencies.
3.5 Publicity. Any party may not, without the other party’s prior written consent: (i) issue press releases relating to this Agreement; or (ii) include the name and logo of the other party in lists of customers or vendors in accordance with the other party’s standard guidelines.
4. Fees & Payment.
4.1 Fees. In consideration for the receipt of the Service, Customer shall pay 7Geese the Annual Subscription Fee and any Professional Services fees, as specified in an Order Form in accordance with the terms and conditions set out therein. 7Geese may change the Annual Subscription Fee and institute new charges at its discretion as of the start of each Renewal Term upon providing not less than sixty (60) days prior written notice to Customer.
4.2 Travel Expenses. If Professional Services are set out in an Order Form, Customer will reimburse 7Geese for all reasonable out of pocket expenses (including travel, lodging and related expenses) incurred by 7Geese in the performance of any Professional Services or the development of any Deliverables, if any, provided that such expenses are approved in advance by Customer in writing, including, without limitation, if such expenses are set out in an Order Form.
4.3 Invoicing & Payment. Unless otherwise stated in an Order Form, Fees for the Service will be invoiced on an annual basis in advance. Unless otherwise stated in an invoice, the Annual Subscription Fee is due immediately from the invoice date. Fees for Professional Services will be invoiced as specified in the applicable Order Form, but, unless specified otherwise in the Order Form, will be due immediately from the date of completion of the applicable Professional Services. Customer is responsible for maintaining complete and accurate billing and contact information with 7Geese.
4.4 Overdue Payments. Any payment not received from Customer by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at 7Geese’s discretion, late charges at the rate of 1.5% of the outstanding balance per month (19.57% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
4.5 Taxes. Unless otherwise stated, 7Geese’s fees do not include any direct or indirect local, state, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including, without limitation, value-added, goods and services, harmonized, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on 7Geese’s net income or property. If 7Geese has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides 7Geese with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.6 Audit Rights. 7Geese shall have the right to use the capabilities of the Service to confirm the number of Users using the Service and Customer’s compliance with this Agreement. If Customer exceeds the number of Users it is authorized to have under this Agreement, Customer will pay to 7Geese additional fees for such excess Users in accordance with this Agreement.
4.7 Suspension of Service. If Customer’s account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, 7Geese reserves the right to suspend the Service provided to Customer, without liability to Customer, until such amounts are paid in full.
5. Proprietary Rights.
5.1 Reservation of Rights to the Service and Deliverables. Subject to the limited rights expressly granted hereunder, 7Geese reserves all rights, title and interest in and to the Service and any Deliverables, including, without limitation, all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein. Subject to Customer’s payment of the Professional Services fees set out in the applicable Order Form, 7Geese grants to Customer a non-exclusive, non-transferable license to use the Deliverables solely in connection with Customer’s permitted use of the Service as set out in Section 2 of the Agreement
5.2 Restrictions. Customer shall not (and shall not allow any third party to): (i) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Service except to the extent that enforcement is prohibited by applicable law notwithstanding a contractual provision to the contrary; (ii) circumvent any user limits or other timing or use restrictions that are built into the Service; (iii) remove any proprietary notices, labels, or marks from the Service or User Guide; (iv) frame or mirror any content forming part of the Service; (v) access the Service in order to: (a) build a competitive product or service, or (b) copy any ideas, features, functions or graphics of the Service; or (vi) use all or any portion of the Service for hazardous purposes requiring fail-safe performance, such as aircraft navigation, air traffic control, or weapons systems, in which the failure of the Service could lead directly to death, personal injury, or severe physical or environmental damage.
5.4 Suggestions. 7Geese shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual, unrestricted license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Users relating to the operation of the Service.
6.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including, without limitation, the terms and conditions of this Agreement (including, without limitation, pricing and other terms reflected in all Order Forms hereunder), the Customer Data, the Service, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
6.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission.
6.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
6.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
6.5 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
7. Warranties & Disclaimers.
7.1 Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement. 7Geese represents and warrants that: (i) it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) the Service shall perform materially in accordance with the User Guide; and (iii) the Service will not contain or transmit to Customer any Malicious Code (except for any Malicious Code contained in User or Customer-uploaded materials or otherwise originating from Customer or a User).
7.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, 7GEESE MAKES NO REPRESENTATIONS AND PROVIDES NO WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS, INCLUDING ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8. Mutual Indemnification.
8.1 Indemnification by 7Geese. Subject to this Agreement, 7Geese shall defend, indemnify and hold Customer harmless against any loss, damage or costs (including reasonable attorneys’ fees) awarded to a third party against Customer by a court of competent jurisdiction in any actions, lawsuits, or proceedings made or brought against Customer by a third party alleging that the use of the Service as contemplated hereunder infringes the intellectual property rights of a third party (“IP Claims”); provided, that Customer: (i) promptly gives written notice of each IP Claim to 7Geese; (ii) gives 7Geese sole control of the defense and settlement of each IP Claim (provided that 7Geese may not settle or defend any IP Claim unless it unconditionally releases Customer of all liability); and (iii) provides to 7Geese, at 7Geese’s cost, all reasonable assistance in respect to each IP Claim.
8.2 Mitigation. If: (i) 7Geese becomes aware of an actual or potential IP Claim, or (ii) Customer provides 7Geese with notice of an actual or potential IP Claim, 7Geese may (or, in the case of an injunction against Customer, shall), at 7Geese’s sole option and determination: (a) procure for Customer the right to continue to use the Service; or (b) replace or modify the Service with equivalent or better functionality so that Customer’s use is no longer infringing; or (c) if (a) or (b) are not commercially reasonable, terminate provision of the Service and refund to Customer any pre-paid Service fees for any periods after the termination of the Service, less any outstanding moneys owed by Customer to 7Geese.
8.3 Exclusions. The obligations in Sections 8.1 and 8.2 do not extend to: (i) any IP Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the Service furnished by 7Geese with other products, software or services not provided by 7Geese; (ii) any IP Claim related to any Customer Data; or (iii) any IP Claim related to any use or exercise of any other right in respect to the Service outside the scope of the rights granted in this Agreement.
8.4 Indemnification by Customer. Subject to this Agreement, Customer shall defend, indemnify and hold 7Geese harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred, directly or indirectly, from or in connection with any actions, lawsuits, or proceedings made or brought: (i) in respect of Customer’s negligence or willful misconduct resulting in death or bodily injury to any person; or (ii) against 7Geese by a third party alleging that the Customer Data, or Customer’s use of the Service in violation of this Agreement, infringes the intellectual property rights of, or has otherwise harmed, a third party (“Customer Claims”); provided, that, in each case, 7Geese: (a) promptly gives written notice of each Customer Claim to Customer; (b) gives Customer sole control of the defense and settlement of each Customer Claim (provided that Customer may not settle or defend any Customer Claim unless it unconditionally releases 7Geese of all liability); and (c) provides to Customer, at Customer’s cost, all reasonable assistance in respect to each Customer Claim.
9. Limitation of Liability.
9.1 Limitation of Liability. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE LESSER OF: (I) $100,000; AND (II) THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER IN THE (12) TWELVE MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
10. Exclusion of Consequential and Related Damages.
IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS) HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. Term & Termination.
11.1 Term of Agreement. This Agreement shall commence as of the Effective Date and shall continue in effect and renew for the Initial Term and any subsequent Renewal Terms set out in the Order Form. Collectively, the Initial Term and any subsequent Renewal Terms shall constitute the “Term”.
11.2 Termination for Cause. A party may terminate this Agreement for cause: (i) upon thirty (30) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination for cause by Customer, 7Geese shall refund Customer any prepaid fees for any periods after the effective date of termination of the Agreement.
11.3 Outstanding Fees. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to 7Geese prior to the effective date of termination.
11.4 Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 4 through 12.
12. General Provisions.
12.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
12.2 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
12.3 Notices. All notices 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; or (iii) the second business day after sending by email. Notices to 7Geese shall be addressed to the attention of the Legal Department. Notices to Customer shall be addressed to Customer’s signatory of this Agreement unless otherwise designated in an Order Form.
12.4 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
12.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
12.6 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, each party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its stock or assets. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.7 Governing Law. Unless otherwise stated in an Order Form, this Agreement shall be governed by the laws of the Province of British Columbia, Canada, without regard to its conflict of law principles. No choice of laws rules of any jurisdiction shall apply to this Agreement. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded. The parties confirm that it is their wish that this Agreement as well as all other documents relating to this Agreement, including notices, be drawn up in English only.
12.8 Venue; Waiver of Jury Trial. The provincial and federal courts located in Vancouver, British Columbia, Canada, shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
12.9 Force Majeure. Neither party shall be responsible for its failure to perform its obligations under this Agreement to the extent due to unforeseen circumstances or causes beyond its control, including, without limitation, acts of God, wars, terrorism, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, or strikes, labour problems (other than those involving the employees of the affected party), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within a party’s possession or reasonable control, provided that such party gives the other party prompt written notice of the failure to perform and the reason therefore and uses reasonable efforts to limit the resulting delay in its performance.
12.10 Export. Customer acknowledges and agrees that the Service may be subject to export and import controls under the regulations of Canada, the United States and other countries, and Customer shall comply with all export and import control regulations of such countries. Customer shall not use the Service for any purposes prohibited by export laws, including, without limitation, nuclear, chemical or biological weapons proliferation. Customer shall be responsible for procuring all required permissions for any subsequent export, import or use of the Service.
12.11 Entire Agreement. This Agreement constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. To the extent of any conflict or inconsistency between the provisions of these 7Geese Enterprise Terms and any Order Form, the terms such Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
12.12 Amendments. Subject to the following sentence, no amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any party, will be binding unless executed in writing by the party or parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, 7GEESE MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY: (I) GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT; OR (II) POSTING NOTICE OF SUCH AMENDMENT ON 7GEESE’S WEBSITE. UNLESS OTHERWISE INDICATED BY 7GEESE, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON 7GEESE’S WEBSITE (WHICHEVER IS EARLIER). CUSTOMER’S CONTINUED USE OF THE SERVICES AFTER SUCH AMENDMENT IS ACKNOWLEDGMENT OF AND AGREEMENT WITH SUCH AMENDMENT.
12.13 Non-Solicitation. If Professional Services are set out in an Order Form, for the Term of this Agreement and for a period of twelve (12) months following the Term, Customer agrees not to, directly or indirectly, solicit or recruit any employees or contributors of 7Geese engaged in the performance of such Professional Services, except that the foregoing will not apply to general solicitation or assistance in connection with any solicitation or recruitment not targeted at 7Geese’s employees or contributors, including, without limitation, through general advertisements or the efforts of any recruiting or employment agencies not targeted at such employees or contributors. 1.1