Customer Terms of Service
These Customer Terms of Service govern and describe your rights as an EveryoneSocial Customer to access and use the EveryoneSocial Platform pursuant to a Subscription entered into between you and EveryoneSocial. These Customer Terms of Service also set forth EveryoneSocial’s responsibilities in providing access and use of the Platform pursuant to a Subscription. These Customer Terms of Service, together with the terms contained in your Subscription Order with EveryoneSocial form a binding agreement between you and EveryoneSocial. Additionally, the EveryoneSocial User Terms of Service and Acceptable Use Policy are incorporated into these Customer Terms of Service and applicable to you and your Authorized Users. If you, as a Customer, have entered into a separate written Platform Subscription Agreement with EveryoneSocial, the provisions of that agreement will supersede and control over any inconsistent or conflicting provisions of these Customer Terms of Service. As used herein, “we”, “our” and “us” refers to EveryoneSocial, and “you” and “your” refers to a Customer and its Authorized Users. We and you are also sometimes referred to as a “party” or the “parties”.
The following definitions apply to your Subscription:
The following defined terms (and any additional defined terms herein) shall apply to this Agreement.
“Authorized Users” means employees and contractors of Customer who have been (i) specified to EveryoneSocial, (ii) assigned a unique username/password to access and use the Platform, and (iii) authorized by Customer to access and use the Platform.
“Customer Data” means any data and information that: (i) is input by any Authorized User into the Platform; (ii) results from an Authorized User’s use of the Platform; and/or (iii) is derived from any of the foregoing, including, without limitation, all lists or other records containing any such information, even if such information is aggregated or anonymized.
“Customer Support” means the EveryoneSocial success and support assistance provided to Customer as summarized at www.everyonesocial.com.
“Confidential Information” means any information concerning the business, business plans, business model, financial affairs, current or future concepts, products or technology, trade secrets, customers, employees, IP, or any other information of a party which such party discloses to the other party in connection with or related to a Subscriiption, including (i) information designated as confidential or proprietary, (ii) information that would reasonably be viewed as confidential or proprietary; (iii) information that would reasonably be viewed as having value to a competitor of such party: or (iv) is otherwise treated as confidential or proprietary by such party whether or not designated as confidential or proprietary.
“Intellectual Property and Intellectual Property Rights (“IP”)” means any and all now known or hereafter known tangible and intangible (i) rights associated with works of authorship including, without limitation, copyrights, moral rights and mask-works; (ii) trademark and trade name rights and similar rights; (iii) trade secret rights; (d) patents, designs, algorithms and other similar rights; (iv) all other intellectual property rights of every kind and nature and however designated, whether arising by operation of law, contract, license or otherwise, including any software, ideas, concepts, know-how, development tools, techniques or any other proprietary material or information; and (iv) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter made, existing, or in force under the laws of any jurisdiction, and all other proprietary or intellectual property rights throughout the universe, including without limitation all applications and registrations (and all renewals and extensions) relating to any of the above.
“Platform” means the EveryoneSocial employee advocacy platform described at www.everyonesocial.com.
“Service Level Agreement” means the service level performance standards for the Platform set forth at www.everyonesocial.com.
“Subscription” means the right to access and use the Platform under the terms of this Agreement as granted by EveryoneSocial.
“Subscription Order” or “SO” means a subscription order or similar document under which Customer orders and subscribes for a specific level of use (including a specified number of Authorized Users) of the Platform under this Agreement, including the agreed pricing for the Subscription.
EveryoneSocial grants to Customer a Subscription to access and use the Platform. The Subscription granted to Customer is non-exclusive, non-transferrable, non-assignable and non-sublicensable, and is otherwise subject to the terms of this Agreement.
The term of Subscription (the “Term”) shall be specified in the SO.
4. Subscription Fees.
(a). Fees. The amount of the Subscription fees (“Fees”) to be paid by Customer shall be set forth in a SO. Unless otherwise specified in a SO, all Fees shall be due and payable net thirty (30) days from invoice. The Fees are exclusive of applicable Sales Taxes.
(b). Taxes. All sales taxes, use taxes, value added taxes, or similar taxes or charges related or assessable in regard to the Fees (collectively “Sales Taxes”) shall be paid by Customer. EveryoneSocial shall invoice Customer with respect to such Sales Taxes. EveryoneSocial and Customer shall otherwise be responsible for all taxes directly assessable and related to their respective business income.
(C). Late Payment Charge. With regard to the delinquent payment of Fees or Sales Taxes, EveryoneSocial may charge a late payment fee in the amount of one (1%) percent per month on the delinquent balance.
(D). Non-Disclosure/Use. EveryoneSocial and Customer represent and warrant that they will not (i) disclose to third parties, or (ii) make any commercial or other use of the other party’s Confidential Information except as expressly agreed to and provided for under these Customer Terms of Service. In the event that the EveryoneSocial and Customer have executed a separate mutual confidentiality and non-disclosure agreement, the provisions of that agreement shall continue to be binding.
5. EveryoneSocial Warranties and Obligations.
EveryoneSocial represents and warrants to Customer that (i) it owns, or has the legal right to use under valid agreements, all Intellectual Property Rights in or related to the Platform, (ii) the Platform will function in accordance with its design and designed use, (iii) access to the Platform on a functional basis will be provided in accordance with the Service Level Agreement performance standards, and (iv) when used in accordance with its design, designed use and the provisions of this Agreement, the function of the Platform will be in compliance with all applicable laws.
6. Customer Warranties and Obligations.
Customer represents and warrants that at all times, its use of the Platform and the use of the Platform by its Authorized Users will be in compliance with the terms of these Customer Terms of Service and all applicable laws. Customer further represents and warrants to EveryoneSocial that neither Customer nor its employees, agents, officers or Authorized Users will (i) use the Platform for any illegal, unauthorized, infringing or unethical purposes, (ii) reverse engineer, decompile, disassemble or access the software code within the Platform, or create or attempt to create any derivative works from the Platform, (iii) permit any third party to access or use the Platform unless such access or use, and all material terms related thereto, have been expressly approved in writing by EveryoneSocial.
7. IP Ownership.
(a). Platform. The Platform is the exclusive IP of EveryoneSocial. EveryoneSocial exclusively owns (i) all right, title and interest in the Platform, including all updates, improvements, modifications, and enhancements to the Platform, (ii) all software used within the Platform, (iii) all functionality and services provided by and through the Platform and all applications related thereto, and (iv) all Intellectual Property Rights therein.
(b). Customer Data and IP. Customer exclusively owns its Customer Data, Customer IP and all Intellectual Property Rights therein. EveryoneSocial agrees that it has no claim, right or interest in Customer Data or Customer IP. EveryoneSocial may only access or use Customer Data or IP in accordance with the terms of this Agreement and as necessary for EveryoneSocial to perform its obligations under this Agreement.
8. EveryoneSocial Disclaimer.
Except for EveryoneSocial’s express representations and warranties set forth in these Customer Terms of Service, THE PLATFORM AND ALL RELATED SERVICES ARE PROVIDED ‘AS IS’ WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TIMELINESS OF DATA TRANSMISSION, ACCURACY OF DATA OR DATA SETS, OR UPTIME AVAILABILITY. EVERYONESOCIAL DOES NOT WARRANT THAT THE PLATFORM WILL BE FREE FROM ALL BUGS, ERRORS, OR OMISSIONS. EVERYONESOCIAL SPECIFICALLY DISCLAIMS ANY WARRANTY AS TO THE ACCURACY OF ANY THIRD-PARTY DATA, AND CUSTOMER ACKNOWLEDGES THAT SUCH THIRD-PARTY DATA IS OUTSIDE OF EVERYONESOCIAL CONTROL. EVERYONESOCIAL DOES NOT WARRANT THAT THE PLATFORM WILL ACCOMPLISH ANY SPECIFIC OBJECTIVE OF CUSTOMER OR WILL OPERATE ERROR FREE. CUSTOMER ACKNOWLEDGES AND AGREES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES OF THIS AGREEMENT. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH ABOVE FAIL THEIR ESSENTIAL PURPOSE. CUSTOMER FURTHER AGREES THAT NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR OTHERWISE, IT WILL NOT HOLD EVERYONESOCIAL LIABLE FOR ANY FAILURE OF THE PLATFORM OR PLATFORM SOFTWARE. CUSTOMER AGREES THAT IT WILL NOT HOLD EVERYONESOCIAL LIABLE FOR ANY THIRD-PARTY INFORMATION EVEN IF SUCH INFORMATION IS DISPLAYED ON, THROUGH, OR IN CONNECTION WITH THE PLATFORM OR SOFTWARE. CUSTOMER AGREES THAT EVERYONESOCIAL SHALL NOT BE RESPONSIBLE TO CUSTOMER FOR ANY DAMAGES CAUSED BY DATA PROVIDED BY THIRD PARTIES, DELAYS RESULTING FROM HARDWARE AND SYSTEMS OWNED AND CONTROLLED BY THIRD PARTIES (INCLUDING WITHOUT LIMITATION THE CUSTOMER’S OWN DATA TRANSMISSION SYSTEMS), DATA ENTRY ERRORS, USER ERRORS, OR ANY OTHER LIMITATIONS, ERRORS, OR DELAYS, THAT ARISE DURING THE TERM OF THIS AGREEMENT THAT ARE OUTSIDE OF THE DIRECT CONTROL OF EVERYONESOCIAL.
9. Limitation of Liability.
TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY, OR TO ANY THIRD PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SUBSCRIPTION OF THE PLATFORM, EVEN IF A PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER’S EXCLUSIVE REMEDY FOR BREACH BY EVERYONESOCIAL OF ITS EXPRESS WARRANTIEES SHALL BE TO DISCONTINUE USE OF THE SERVICES AND TERMINATE THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, A PARTY’S LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AGGREGATE DOLLAR AMOUNT PAID BY CUSTOMER TO EVERYONESOCIAL IN THE TWELVE (12) MONTHS PRIOR TO THE CLAIMED BREACH OR DAMAGE (EXCEPT WITH RESPECT TO CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 4 OF THIS AGREEMENT WHICH SHALL NOT BE LIMITED BY THIS SECTION). MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. TO THE EXTENT THAT APPLICABLE LAW LIMITS THE DISCLAIMER OR EXCLUSION OF IMPLIED WARRANTIES OR LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS ON LIABILITY SET FORTH HEREIN SHALL NEVERTHELESS APPLY TO THE MAXIMUM EXTENT ALLOWED UNDER ANY SUCH LAWS.
10. EveryoneSocial Indemnification.
EveryoneSocial shall defend or settle any claim, suit, or action against Customer based on an allegation that the Platform infringes any third party’s patent or copyright. In defending or settling any such infringement claim, EveryoneSocial may, at its sole option and expense (i) procure the right to continue offering the use of the Platform, (ii) modify the Platform so that it is non-infringing, (iii) procure a replacement product that has substantially the same functionality, or (iv) if none of the above options is reasonably available, terminate this Agreement and Customer’s License of the Platform hereunder. Notwithstanding the foregoing, EveryoneSocial’s indemnification obligation shall not apply unless Customer delivers to EveryoneSocial written notice of any claim or threat promptly after Customer learns of such claim or threat and EveryoneSocial is given the opportunity to exclusive right to respond to any such claim and to control the defense of any action related to such claim; provided, that Customer shall have the right to participate in any such action with respect to any matters in such action having or potentially having a materially adverse impact on Customer. EveryoneSocial’s indemnification obligation shall not apply if the Platform has been altered in any way by Customer, or improperly used by Customer, and such infringement claim relates to or results from such alteration or improper use. The indemnification obligation set forth in this Section shall be EveryoneSocial’s entire liability and Customer’s exclusive remedy with respect to any such infringement claim.
11. Mutual Indemnification.
Each party agrees to defend, indemnify and hold harmless the other party, its affiliates, employees, officers, agents, licensors and successors and assigns from all damages and liability including, without limitation, reasonable attorneys’ fees, incurred as a result of such party’s breach, non-performance or violation of its obligations under this Agreement. Each party’s obligation to indemnity under this provision shall survive termination of the Subscription.
12. Suspension and Termination.
(a). Termination for Default/Notice. In the event that either party materially defaults in the performance of any of its duties or obligations under a Subscription (other than non-payment) and does not substantially cure such default, or commence a cure, within thirty (30) days after being given written notice specifying the default, the non-defaulting party may, by giving written notice thereof to the defaulting party, immediately terminate the Subscription.
(b). Suspension or Termination/Non-Payment. If Customer fails to pay any properly invoiced Fees, and does not pay such Fees within ten (10) days following written notice, EveryoneSocial may suspend Customer’s access to and use of the Platform until it receives all amounts due, and may terminate the Subscription if the failure to pay is not rectified in full within thirty (30) days of the written notice. A termination by EveryoneSocial for Customer’s failure to make payment of Fees shall not relieve the Customer from its obligation to pay the Fees for the Subscription during the remainder of the then current Term.
(c). Suspension or Termination/Misuse of the Platform. EveryoneSocial may suspend or terminate this Agreement at any time upon written notice if Customer or Customer’s Authorized Users use or attempt to use the Platform in an unauthorized, illegal or infringing manner, of in violation of these Customer Terms of Service.
(d). Effect of Termination. Upon termination, (i) the Subscription, any rights granted to Customer to access or use the Platform and EveryoneSocial’s obligations under the Subscription shall terminate, (ii) within thirty (30) days of termination Customer shall pay to EveryoneSocial all outstanding Fees and amounts owned to EveryoneSocial under the Subsription, (iii) each party will return to the other party all Confidential Information disclosed to such party, or at a party’s request, delete or destroy all of such Confidential Information in their possession, and (iv) EveryoneSocial’s right to access or use Customer Data or IP shall terminate except as required for EveryoneSocial to complete any performance under the Subscription related to or required by the termination.
13. General – Effective Date.
13.1 Notice. Any notice required or permitted to be given hereunder shall be in writing and be delivered by courier, hand delivery, mail or email, and will be deemed to have been delivered upon receipt. The addresses for such communication shall be as set forth in a SO, or such other addresses as may be given from time to time by either party to the other in writing.
13.2 EveryoneSocial Status. EveryoneSocial is a division of Gravit, Inc, a Delaware corporation.
13.3 Independent Contractors. EveryoneSocial and Customer are independent contractors. Nothing in this Agreement shall be deemed or construed to create a joint venture, partnership or agency relationship between the parties, or to grant to either party any authority to bind the other party.
13.4 Survival. The provisions and obligations under Sections 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 of these Customer Terms of Service shall survive any termination of this Agreement.
13.5 Our Agreement. These Customer Terms of Service, together with the terms of a Customer’s SO, constitute the entire agreement between EveryoneSocial and Customer with respect to the Subscription and subject matter hereof, and replace, amend and supersede any prior agreements between EveryoneSocial and Customer pertaining to the subject matter hereof.
13.6 Modification. As our business evolves, we may change or modify these Customer Terms of Service. Reasonable notice of a material change or update to these Customer Terms of Service will be provided by emailing the email address associated with your account, by messaging you through the Platform or by posting the update or change on our website. You can review the most current version of these Customer Terms of Service Terms at any time by visiting this page on our website. Any material revisions to these Customer Terms of Service will become effective on the date set forth in any notice, or on the date that we publish the change on our website. If you use the Platform after the effective date of any changes, modifications or updates, that use will constitute your acceptance of the modified and then applicable Customer Terms of Service.
13.7 No License. A Subscription shall not be deemed to grant to Customer any license or other right in or to the Platform or any EveryoneSocial IP or Confidential Information. Customer’s rights with respect to the Platform, and the access to and use of the Platform, are expressly limited to the Subscription and these Customer Terms of Service.
13.8 Governing Law. The Subscription and these Customer Terms of Service will be governed and construed under the laws of the State of Delaware without regard to conflict of laws.
13.9 Waiver. The waiver of, or failure by, either party to exercise any right in any respect provided for herein under a given circumstance shall not be deemed a waiver of any such right in a future or different circumstance, or of any other right hereunder.
13.10 Severability. If any provision of these Customer Terms of Service is determined to be invalid or unenforceable under any applicable law, such provision shall be deemed omitted, and the balance of these Customer Terms of Service shall remain enforceable.
13.11 Force Majeure. Except for the payment of the Fees due by Customer, if the performance of any part of a Subscription by a party is prevented, hindered, delayed or otherwise made impracticable by reason of any cause or event not within the reasonable control of such party and without its fault or negligence, including Internet system failures, acts of war, acts of terrorism, natural disasters, or other acts of God, such party shall be excused from such performance to the extent and during the period that it is prevented, hindered or delayed from performing by such causes.
13.12 Assignment. Neither party may assign, or transfer its rights, duties or obligations under a Subscription to any other person or entity, in whole or in part, without the prior written consent of the other party. Notwithstanding the foregoing, upon written notice, either party may assign a Subscription and its rights, duties and obligations hereunder in connection with the merger of such party with or into another company, the acquisition of such party by another company, or a similar change of control transaction.
13.13 Interpretation/Disputes. In the event that the parties are unable to resolve any matter or dispute related to the interpretation, performance or breach of a Subscription within thirty (30) days of written notice from one party to the other party, such matter or dispute shall be resolved through arbitration with Judicial Arbitration and Mediation Services (JAMS), which arbitration proceeding may be commenced by either party. The foregoing provision shall not prevent or limit a party from seeking immediate judicial or injunctive relief in regard to an allegation that the other party has breached or failed to perform its obligations related to Confidential Information and Intellectual Property, including the wrongful use or disclosure thereof.
Please also feel free to contact us if you have any questions about EveryoneSocial’s Customer Terms of Service. You may contact us at feedback@EveryoneSocial.com or at our mailing address below:
136 Main St, Suite 610
Salt Lake City, UT 84101