HootSuite Enterprise Terms of Service

Welcome to HootSuite, a service of HootSuite Media Inc., HootSuite offers software, analytics and other tools, and advice to help you manage social media marketing

PLEASE READ THESE ENTERPRISE TERMS OF USE ("TERMS") CAREFULLY BEFORE USING THIS SITE. These Terms are a legally binding contract between you and HootSuite Media, Inc., located at 37 Dunlevy Street, Vancouver, British Columbia, Canada. HootSuite Media Inc. provides the Services (as defined below) to you subject to and conditioned upon your acceptance of these Terms.

BY ACCESSING AND USING THE SERVICES IN ANY WAY, YOU ARE "ACCEPTING" AND AGREEING TO BE BOUND BY THESE TERMS, INCLUDING THE WARRANTY DISCLAIMERS, LIMITATIONS OF LIABILITY, AND TERMINATION PROVISIONS BELOW. IF YOU DO NOT AGREE TO THE TERMS, DO NOT USE THE SERVICES OR THIS SITE AND EXIT NOW.

HootSuite may update and change any or all of these Terms, including but not limited to the fees and charges associated with the use of the Services. If we update or change these Terms, we will post the updated Terms at www.hootsuite.com/enterpriseterms The updated Terms will become effective and binding on the seventh business day after they are posted. When we change these Terms, we will modify the "Last Modified" date above. We encourage you to review these Terms periodically.

SERVICES AGREEMENT

BACKGROUND

1. HootSuite operates a social networking client, accessed through www.hootsuite.com, which makes it easy to manage multiple users over various social network accounts (the "Services").
2. HootSuite provides the Services through the sale of HootSuite Enterprise Licences and the Customer wishes to purchase a HootSuite Enterprise Licence.
3. Through purchasing the HootSuite Enterprise Licence and by using the Services accessed thereby, the Customer agrees to be bound by the terms and conditions (the "Terms of Service") thereof.
4. The Customer wants HootSuite to provide, and HootSuite wishes to provide, certain services to the Customer as described in this agreement
5. The Customer acknowledges that the Initial Fee is due on the Commencement date (each as defined herein, respectively) and that all quotes will be provided separately. HootSuite is under no obligation hereby to provide the services until the Initial Fee has been received in full.

TERMS OF SERVICE - SCHEDULE B

1.0 APPLICATION

1. Conflict.  The complete Terms of Service may be reviewed at www.hootsuite.com/ enterpriseterms. The Terms of Service available at www.hootsuite.com/enterpriseterms supersede the terms and conditions of any previous agreement.
2. Access.  Subject to the terms and conditions of this agreement, HootSuite hereby grants to the Customer a non-exclusive, revocable licence to access and use the Services in accordance with the terms and conditions of this agreement, for the Customer's own internal business purposes only.
3. Restrictions.  The Customer must not:
   1. reverse engineer, de-compile, hack, disable, disrupt, interfere with, disassemble, copy, decrypt, reassemble, supplement, translate, adapt or enhance any of the Services or the hardware or software used to provide the Services;
   2. upload to or transmit from the Services any content or anything else that (if reproduced, published, transmitted or used) may:
      1. be defamatory, threatening, abusive, harassing, hateful, obscene, pornographic, harmful or invasive of anyone's privacy, or excessively violent,
      2. violate any law including intellectual property, privacy or other laws; or
      3. give rise to civil or other liability
   3. upload to or transmit from the Services any data, file, software or link that contains or redirects to a virus, Trojan horse, worm or other harmful component;
   4. interfere with the Services or any third party's use of the Services; or
   5. authorize or encourage any third party to do any of the above.
4. No Other Rights.  All rights not expressly granted in this agreement are reserved by HootSuite. For clarity, nothing in this agreement will be construed as granting the Customer any ownership, security, right in any intellectual property, or other rights in or relating to any or all of the Services.
5. Security.  The Customer must keep its password and user name for the Services confidential. The Customer must not allow any third party access or use its user name, password or account for the Services. The Customer is solely responsible and liable for all activity conducted through its account in connection with the Services. If the Customer becomes aware of or reasonably suspect any security breach, including any loss, theft or unauthorized disclosure or use of its password or account, the Customer must immediately report the actual or suspected security breach to HootSuite.

2.0 SERVICES

1. Services. Provided that the Customer complies with its obligations under this agreement, HootSuite will provide the Services to the Customer. HootSuite may use third party contractors to provide some or all of the Services. The Services may be provided using servers and other equipment located in any country including Canada, the United States and elsewhere.
2. Restriction. The Customer must not resell, transfer or otherwise provide any of the Services to any third party.
3. HootSuite Employees/Contractors. The Customer will not directly or indirectly at any time during the term of this agreement or for 12 months thereafter:
   1. induce or encourage any employee or contractor of HootSuite to leave his or her employment or engagement with HootSuite; or
   2. employ, attempt to employ, assist any person to employ, or retain as a consultant or contractor, any employee or contractor or former employee or contractor of HootSuite;
   without HootSuite's prior written consent.
4. Downtime. HootSuite will use commercially reasonable efforts to keep the Services available 24 hours a day, 7 days a week; however, the Services may occasionally be unavailable due to routine maintenance, emergency maintenance, upgrades, hardware and software malfunctions, repairs, power outages, hackers, denial of service attacks and unforeseeably large service demands. Where reasonably possible, HootSuite will provide the Customer with prior notice of any scheduled service interruptions.
5. HootSuite SLA for Enterprise Users

   Types of Problems	Response Time	Est. Resolution Time
   Technical Instructions	Same business day if before 2pm PST	Within 2 business days from last customer response
   Known Problems	Same business day if before 2pm PST	Prioritize fix and keep client informed of progress
   Account Issues (Ownership etc.)	Same business day if before 2pm PST	Within 2 business days from last customer response

   Maximum 8 tickets/day per user
   For unresolved technical/downtime problems not including browser issues, issues with 3rd party network connectivity, or issues outside of HootSuite's control, 1/30 of monthly fee will be refunded for each 24 hours of verifiable downtime.
   Note that response times only apply to support tickets filed through http://hootsuite.com/help. You must be logged in to your premium user account when filing a ticket for these SLA terms to apply. Response times for emails, tweets, or other social network posts may differ, and are not part of this SLA.

3.0 FEES

1. Fees.  The Customer will pay all Fees as and when described per the order form.
2. Interest.  The Customer will pay simple interest on all overdue amounts at a rate of 18% per year or the maximum rate permitted by law, whichever is less, calculated from the date payment was due until the date payment of all overdue amounts is made in full.

4.0 CONFIDENTIALITY & PROPRIETARY RIGHTS

1. Confidentiality. Each party will (and will cause its employees and agents to) keep the other party's Confidential Information strictly confidential, and will not: (a) use it or take any benefit from it except as required to perform or receive the Services, or (b) disclose it to anyone unless the other party consents or unless the recipient is required by law or court order to do so. In this agreement, "Confidential Information" means all information, data and financial information relating to the business, commercial strategies, pricing, personnel, customers, products or services of a party (the "discloser") but excludes any information that the other party (the "recipient") proves:
   1. was lawfully in the recipient's possession before receiving it from the discloser,
   2. is provided in good faith to the recipient by a third party without breaching any rights of the discloser or any other party, or
   3. is or becomes generally available to, or accessible by, the public through no fault of recipient.
2. Customer Data.  As between the parties, the Customer solely owns all the Customer's data in the Services (the "Customer Data"). HootSuite may manipulate, format, display, transmit and otherwise use that data as necessary to perform its obligations under this agreement and to provide the Services to the Customer.
3. Services.  As between HootSuite and Customer, all intellectual property rights (past, present and future) in and to the Services, and all technology, deliverables and other work product created in connection with the Services, are and will remain vested solely in HootSuite. Nothing in this agreement will be construed as limiting or prohibiting HootSuite from, or requiring HootSuite to, create any new releases, upgrades, enhancements or modifications of or to, the Services.

Any supplemental software code, documentation, or other material provided to Customer as part of the Services, whether in written or digital format, will be considered part of the Services and subject to the terms and conditions of this agreement. With respect to information Customer provides to HootSuite as part of the provision of Services by HootSuite, Customer agrees that HootSuite may use such information for its business purposes, including for product support and development, on the condition that HootSuite not utilize such information in a form that personally identifies Customer.

5.0 TERM AND TERMINATION

1. Term. This agreement will commence on the Effective Date and continue for the Initial Term described in Authorization Form unless terminated as described below.
2. Renewal. After the Initial Term, this agreement will automatically renew for an unlimited number of one-year renewal terms unless a party gives the other party written notice of non-renewal at least 60 days prior to the end of the then-current term.
3. Termination for Cause. Either party may terminate this agreement for cause if the other party materially breaches the agreement and fails to remedy the breach within 30 days after receiving the other party's written notice of the breach.
4. Termination for Insolvency. Either party may terminate this agreement immediately by delivering written notice of termination to the other party if:
   1. the other party becomes insolvent or voluntarily or involuntarily bankrupt;
   2. a petition in bankruptcy against the other party is not dismissed within 90 calendar days of filing;
   3. a receiver, assignee or other liquidating officer is appointed for all or substantially all of the other party's business;
   4. the other party makes an assignment in bankruptcy or an assignment for the benefit of creditors;
   5. the other party ceases to carry on its business in the normal course (or threatens to cease carrying on its business in the normal course); or
   6. if any resolution is passed or order made or other steps taken for the winding up, liquidation or other termination of the existence of the party, or for the amalgamation or merger of the party with another entity.
5. Effect of Termination. Upon termination of this agreement for any reason:
   1. the Customer will immediately cease all use of the Services;
   2. the Customer will have no further access to its account in the Services;
   3. the Customer will pay HootSuite all unpaid amounts owing to HootSuite;

6.0 REPRESENTATIONS AND WARRANTIES

Mutual Representations and Warranties. Each party represents and warrants to the other, in respect of itself, that it has the requisite capacity to enter into and be bound by this agreement and to fulfill its obligations to the other party on the terms and conditions set forth in this agreement.

Indemnification

1. 6.1 Customer Indemnity. The Customer will indemnify and hold HootSuite and its employees, directors, officers, agents and affiliates harmless from and against all losses, claims, actions, damages and costs (including legal fees) of any kind or nature which may arise out of:
   1. the breach of any term of this agreement by the Customer or any of its employees, contractors or agents;
   2. any representation or warranty made by the Customer being untrue; and
   3. the negligence or misconduct of the Customer or any of its employees, contractors or agents.
2. 6.2 HootSuite Indemnity. HootSuite will indemnify and hold the Customer and its employees, directors, officers, agents and affiliates harmless from and against losses, claims, actions, damages and costs (including legal fees) of any kind or nature which may arise out of:
   1. the breach of any term of this agreement by HootSuite or any of its employees, contractors or agents;
   2. any representation or warranty made by HootSuite being untrue; and
   3. the negligence or misconduct of HootSuite or any of its employees, contractors or agents.

7.0 LIMITATION OF LIABILITY

1. Disclaimer. THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE". HOOTSUITE DISCLAIMS all TERMS, conditions, GUARANTEES, representations and warranties (express, implied, statutory AND otherwise), in respect OF THE SERVICES, including THOSE of merchantability, NON-INFRINGEMENT, title, quality And fitness for a particular purpose.
2. Limitation of Liability. THE CUSTOMER USES THE SERVICES AT ITS OWN RISK. HOOTSUITE WILL NOT BE LIABLE FOR ANY LOSS IN CONNECTION TO THE USE OF, OR INABILITY TO USE THE SERVICES, INCLUDING ANY LOSS TO THE CUSTOMER'S DATA. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND WITHOUT LIMITING THE PREVIOUS SENTENCE, HOOTSUITE WILL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES WHATSOEVER IN CONNECTION WITH THE SERVICES.
3. Maximum Liability. IF, DESPITE THE ABOVE LIMITATIONS, HOOTSUITE BECOMES LIABLE TO THE CUSTOMER IN RESPECT OF THE SERVICES OR A COMBINATION OF THE FOREGOING, THAT LIABILITY WILL BE LIMITED TO THE FEES THE CUSTOMER PAID TO HOOTSUITE FOR ITS USE OF THE SERVICES IN THE 3 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.

8.0 GENERAL

1. Law and Courts. This agreement and each of the documents contemplated by or delivered under or in connection with this agreement are governed exclusively by, and will be enforced, construed and interpreted exclusively in accordance with, the laws applicable in British Columbia, Canada. All disputes under this agreement will be resolved by the courts of British Columbia in Vancouver; however, nothing in this section prohibits either party from obtaining an injunction against the other party in any other jurisdiction.
2. Severability. Each provision of this agreement is severable. If any provision of this agreement is or becomes illegal, invalid or unenforceable in any jurisdiction, the illegality, invalidity or unenforceability of that provision will not affect the legality, validity or enforceability of the remaining provisions of this agreement, or of that provision in any other jurisdiction.
3. Assignment. The Customer must not assign this agreement or its rights or obligations under this agreement to any third party, except with the prior written consent of HootSuite
4. Enurement. This agreement enures to the benefit of and binds the parties and their respective successors and permitted assigns.
5. Notice. All notices and other communication that the parties give each other in connection with this agreement must be in writing and will be deemed given if delivered by hand, double registered mail, or fax to the recipient at its address set out on the first page of this agreement or at such other address or telecommunication number of which the party gives the other notice. Proof of delivery in that manner will constitute proof of receipt.
6. Waivers. No waiver of any provision of this agreement is binding unless it is in writing and signed by all the parties to this agreement except that any provision which does not give rights or benefits to particular parties may be waived in writing, signed only by those parties who have rights under, or hold the benefit of, the provision being waived if those parties promptly send a copy of the executed waiver to all other parties. No failure to exercise, and no delay in exercising, any right or remedy under this agreement will be deemed to be a waiver of that right or remedy. No waiver of any breach of any provision of this agreement will be deemed to be a waiver of any subsequent breach of that provision or of any similar provision.
7. Further Assurances. Before and after the Effective Date, each party will promptly execute and deliver all further documents and take all further action reasonably necessary or appropriate to give effect to the provisions and intent of this agreement and to complete the transactions contemplated by this agreement.
8. Independent Parties. This agreement does not and will not be construed to create any partnership or agency whatsoever as between HootSuite and the Customer, and neither party will, by reason of any provision herein contained, be deemed to be the partner, agent or legal representative of the other of them nor have the ability, right or authority to assume or create, in writing or otherwise, any obligation of any kind, express or implied, in the name of or on behalf of the other of them.
9. Remedies Cumulative. The rights and remedies under this agreement are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise. No single or partial exercise by a party of any right or remedy precludes or otherwise affects the exercise of any other right or remedy to which that party may be entitled.
10. Survival. Sections 5.5, 8.1, 8.10, 6.1, 6.2, and Part 4 of this Schedule B will survive termination of this agreement.
11. Counterparts. This agreement and all documents contemplated by or delivered under or in connection with this agreement may be executed and delivered in any number of counterparts with the same effect as if all parties had all signed and delivered the same document and all counterparts will be construed together to be an original and will constitute one and the same agreement.
12. Amendments. No amendment, supplement, restatement or termination of any provision of this agreement is binding unless it is in writing and signed by each party to this agreement at the time of the amendment, supplement, restatement or termination.
13. Entire Agreement. This agreement, the settlement agreement and all documents contemplated by or delivered under or in connection with this agreement or the Settlement agreement, constitute the entire agreement between the parties with respect to the subject matter of this agreement and supersede all prior agreements, negotiations, discussions, undertakings, representations, warranties and understandings, whether written or oral, express or implied, statutory or otherwise.