Last modified date April 21, 2014
Welcome to Hootsuite. These terms and conditions (“Terms of Service” or “Agreement”) govern your access to and use of Hootsuite Media Inc.'s (“Hootsuite”) Services (as defined below), and website accessible via www.hootsuite.com, including successor domain names or sites (the “Site”), and any and all information, text, graphics, photos, or other materials uploaded, downloaded, or appearing on the Services (as defined below). Hootsuite Pro and Hootsuite Free products are not governed by these terms, but by the terms published at www.hootsuite.com/terms.
Wherever used in these Terms of Service, “you”, “your”, “Customer”, or similar terms means the person or legal entity accessing or using the Services. If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms of Service.
Hootsuite may update and change any or all of these Terms of Service from time to time, in its sole discretion. If Hootsuite does so, it will post the modified Terms of Service on the Site and/or inform you of such modified Terms of Service through other communications as indicated in these Terms of Service. Continued use of the Services after any such changes have been made shall constitute your consent to such changes. You are responsible for regularly reviewing the most current version of the Terms of Service, which are currently available at: http://www.hootsuite.com/enterpriseterms. When Hootsuite changes these Terms, Hootsuite will modify the "Last Modified" date above.
“Affiliate” means a person or entity that owns, is owned by, or is under common control with a Party, and “control” in this definition means that a person or entity owns more than 50% of the equity interest of any entity and/or has the ability to control the management of such entity.
“Authorization Form” means a document issued by Hootsuite and executed or otherwise agreed upon by authorized representatives of the Customer which specifies, among other things and as applicable, a description of the Services, the Fees, the number of Seats, Queries and/or units purchased, the Term, and any other details specifically related to the Services.
“Authorized Users” means individuals who are authorized by Customer to use the Services with varying levels of control and access as specifiable by Customer and who have been supplied user identifications and passwords by Customer. Authorized Users may include the employees, consultants, contractors, agents, or other designees of Customer and its Affiliates, but shall not include any employee or agent of any Hootsuite competitor.
“Customer Content” means all information and data (including text, images, photos, videos, audio, and documents) or any other content in any media and format provided or made available to Hootsuite by or on behalf of Customer in relation to the use of the Hootsuite Platform and/or the provision of the Purchased Services.
“Fair Use Policy” means the limits placed on usage as described in Section 2.7.
“Hootsuite Platform” means Hootsuite’s proprietary software, content, text, images, media, and other materials delivered through its web platform www.hootsuite.com (including successor domain names or sites) and mobile applications that provide for a single log-in, centralized web dashboard that enables Authorized Users to manage and publish social media content to multiple Supported Platforms, including any modifications or Updates (as defined herein).
“Mentions” means the information, including links, posts, and excerpts, that has been made publicly available and obtained by Hootsuite on Customer’s behalf from the Internet, and data derived therefrom, including reports, summaries, graphs, and charts.
“Platforms” means, together, the Hootsuite Platform and the uberVU Application, as applicable.
“Purchased Services” means any additional products and services that are ordered by Customer under an Authorization Form and made available by Hootsuite, which may include Query-based Subscriptions, but expressly excludes any Third-Party Services (as defined herein).
“Query” means a search string that an Authorized User uses to define what words and phrases must be present in a Mention for that Mention to be included in the applicable stream, and any such individual Query is referred to as a “Stream” in the Authorization Form.
“Query-based Subscription” means a subscription whereby Customer pays for either batches of Queries or individual Queries, as set out in the applicable Authorization Form, delivered either through the uberVU Application or through the Hootsuite Platform.
“Seat” means a single subscription associated with a single log-in to the Hootsuite Platform, assigned by Customer to one Authorized User.
“Service Start Date” means the earlier of (i) the date set forth on the Authorization Form and (ii) the first date on which Customer is granted access to the Services.
“Supported Platform(s)” means the social networking site(s) currently supported by the Hootsuite Platform, including Twitter, Facebook, LinkedIn, and other social networking sites as described via the Website www.hootsuite.com.
“Taxes” means all taxes, assessments, charges, fees, and levies that may be levied or based upon the sale or license of goods and/or services, as the case may be, including all sales, use, goods and services, value added, and excise taxes, custom duties, and assessments together with any installments with respect thereto, and any interest, fines, and penalties with respect thereto, imposed by any governmental authority (including federal, state, provincial, municipal, and foreign governmental authorities).
“uberVU Application” means the proprietary software, content, text, images, media, and other materials delivered through the web platform www.ubervu.com (including successor domain names or sites) that summarizes, analyzes, and provides links to the Mentions relevant to all Queries that Customer has set up, including any modifications or Updates (as defined herein).
2. Hootsuite Services
2.1 Services. During the Term (as defined herein), subject to the terms and conditions of this Agreement, and solely for Customer’s internal business purposes, Hootsuite shall (i) make the Hootsuite Platform available to Customer and its Authorized Users for the number of Seats purchased; and (ii) provide Customer with the Purchased Services, the whole as fully described in accordance with an applicable Authorization Form. The Hootsuite Platform and Purchased Services shall collectively be referred to as the “Services”.
2.2 Affiliates. Each Customer Affiliate that wishes to use the Hootsuite Platform and/or be provided Purchased Services shall enter into a separate Authorization Form substantially in the form of the initial Authorization Form, which incorporates the terms of this Agreement by reference.
2.3 Hosting Services; Service Levels. Hootsuite shall use commercially reasonable efforts to host, serve, distribute, and enable the availability of the Platforms and shall ensure that the Platforms are available to Customer in accordance with the service level criteria and performance metrics set forth in Hootsuite’s Service Level Agreement.
2.4 Updates and Functionalities. Customer acknowledges that from time to time Hootsuite may apply updates to the Services and that such updates may result in changes in the appearance and/or functionality of the Services (including the addition, modification, or removal of functionality, features, or content). Excluding the addition of wholly new products, Hootsuite shall provide, implement, configure, install, support, and maintain at its own cost any and all updates, upgrades, enhancements, improvements, releases, corrections, bug fixes, patches, and modifications to the Services (collectively, the “Updates”). Customer acknowledges that the Services interoperate with several Supported Platforms, and that the Services provided are highly dependent on the availability of such Supported Platforms. If at any time any Supported Platforms cease to make their programs available to Hootsuite on reasonable terms, Hootsuite may cease to provide such features to Customer without entitling Customer to refund, credit, or other compensation (an “API Change”). Subject to an API Change, Hootsuite represents that the functionality of the Services shall not be materially decreased during the Term.
2.5 Acceptable Use. Customer shall (i) be responsible for Authorized Users’ compliance with this Agreement, including the Fair Use Policy; (ii) be solely responsible for the accuracy, quality, integrity, and legality of Customer Content and of the means by which it acquired or generated Customer Content; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, including keeping its password and user name confidential and not permitting any third party to access or use its user name, password, or account for the Services; (iv) be solely responsible and liable for all activity conducted through its account in connection with the Services; (v) promptly notify Hootsuite if Customer becomes aware of or reasonably suspects any security breach, including any loss, theft, or unauthorized disclosure or use of Customer’s (or any Authorized User’s) user name, password, or account; (vi) use the Services only in accordance with applicable laws and government regulations or otherwise access in connection with Customer’s use of the Services; (vii) comply in all respects with all applicable terms of the Third-Party Services that it subscribes to. Customer must not (a) make the Services available to anyone other than its Authorized Users; (b) allow more than one individual Authorized User to use a Seat; (c) sell, trade, or otherwise transfer its Seats to another party; (d) use the Services to store or transmit any content, including Customer Content, that may be infringing, defamatory, threatening, harmful, or otherwise tortious or unlawful, including any content that may violate intellectual property, privacy, rights of publicity, or other laws, or send spam or other unsolicited messages in violation of applicable law; (e) 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; (f) attempt to reverse engineer, de-compile, hack, disable, interfere with, disassemble, copy, or disrupt the integrity or the performance of the Services, any third-party use of the Services, or any third-party data contained therein (except to the extent such restrictions are prohibited by applicable law); (g) access the Services in order to build a competitive product or service or copy any ideas, features, functions, or graphics of the Services; (h) attempt to gain unauthorized access to the Services or its related systems or networks; or (i) authorize, permit, or encourage any third party to do any of the above.
2.6 Mentions. Customer understands that by using the Services it may be exposed to third-party content, information, and Mentions that might be unlawful, offensive, harmful, inaccurate or otherwise inappropriate. Unless Customer creates the content of the Mentions, Mentions shall not be considered “Customer Content” under any circumstances. Hootsuite has no obligation to preview, verify, flag, modify, filter, or remove any Mentions, even if requested to do so, although Hootsuite may do so in its sole discretion. Customer’s use of Mentions is at Customer’s sole risk, and Hootsuite shall not be liable to Customer or any third party in relation to Mentions.
2.7 Fair Use Policy. Hootsuite may suspend Customer’s access to the Services for abusive practices that degrade the performance of the Services for Customer and/or other customers of Hootsuite. Examples of abusive practices include tracking terms such as “love”, “yes”, or “the” or using for redistribution, syndication, or deceitful activities.
2.8 Agency. If Customer operates as an agency (an “Agency Customer”) representing various clients (“Clients”), all terms and conditions of this Agreement shall apply to Agency Customer. Agency Customer will also contractually bind its Clients to the terms of this Agreement and Agency Customer will be liable for any breach of this Agreement by its Clients. In addition, Agency Customer represents and warrants that (i) it has obtained all necessary authorizations, consents, and licenses from each Client to bind Client to this Agreement (including each Authorization Form), and act as Client’s agent and, more particularly, has obtained all necessary approvals for the use and subscription to the Services by, and on behalf of, Client; and (ii) all of Agency Customer’s actions related to this Agreement will be within the scope of Agency Customer’s agency. Agency Customer will defend, indemnify, and hold harmless Hootsuite from all damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising from Agency Customer’s breach of this Section 2.8.
2.10 Non-Exclusivity. Customer acknowledges that the rights granted to it under this Agreement are non-exclusive and that nothing in this Agreement will be interpreted or construed to prohibit or in any way restrict Hootsuite’s right to license, sell, or otherwise make available the Services to any third party or perform any services for any third party.
3. Intellectual Property
3.1 Hootsuite Services. As between Customer and Hootsuite, Hootsuite retains all right, title, and interest in and to the Services. Nothing herein shall be construed to restrict, impair, encumber, alter, deprive, or adversely affect the Services or any of Hootsuite’s rights or interests therein or any other Hootsuite intellectual property, brands, information, content, processes, methodologies, products, goods, services, materials, or rights, tangible or intangible. All rights, title, and interest in and to the Services not expressly granted in this Agreement are reserved by Hootsuite. Customer may from time to time provide suggestions, comments, or other feedback to Hootsuite with respect to the Services (“Feedback”). Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for Hootsuite. Customer shall, and hereby does, grant to Hootsuite a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose.
3.2 Customer Content. Customer hereby grants Hootsuite a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 10.1) license, without a right of sublicense, to access, use, reproduce, electronically distribute, transmit, perform, format, display, store, archive, and index the Customer Content for the purpose of supporting Customer’s use of the Services and providing Services to Customer. Hootsuite may also use Customer Content for the purpose of supporting and developing the Platforms, provided that when doing so, Hootsuite shall only use Customer Content in an anonymized and aggregated way. Subject only to the limited license expressly granted herein, Customer and its Authorized Users shall retain all right, title and interest in and to the Customer Content and all intellectual property rights therein. Nothing in this Agreement will confer on Hootsuite any right of ownership or interest in the Customer Content or the intellectual property rights therein.
4. Hootsuite Products and Fees
4.1 Fees. Customer will pay all fees as and when described per the Authorization Form(s) (the “Fees”).
4.2 Invoicing. Hootsuite shall invoice Customer for the Fees in the currency set forth on the applicable Authorization Form. Unless otherwise stated on the Authorization Form, all invoices shall be payable within 30 days of the invoice date. Any disputed amounts shall not affect payment of non‑disputed amounts. Customer shall make payments to the entity and address set forth in the invoice.
4.3 Late Payment. If any amounts invoiced hereunder are not received by Hootsuite by the due date, then at Hootsuite’s discretion, such charges may accrue late interest at the rate of 12% per year or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. In addition, upon 30 days' written notice to Customer, Hootsuite may suspend Customer’s access to the Services if Hootsuite does not receive the amounts invoiced hereunder at the expiration of such period.
4.4 Taxes. Customer is responsible for paying all Taxes associated with the subscription to the Services. If Hootsuite 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 Hootsuite with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.5 Withholdings. Any and all payments by or on account of the compensation payable under this Agreement shall be made free and clear of and without deduction or withholding for any Taxes. If Customer is required to deduct or withhold any Taxes from such payments, then the sum payable shall be increased as necessary so that, after making all required deductions or withholdings, Hootsuite receives an amount equal to the sum it would have received had no such deduction or withholding been made.
5. Confidential Information and Security Requirements
5.1 Confidential Information. Each Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) and will not disclose or use any Confidential Information (as defined below) of the other Party for any purpose outside the scope of this Agreement, and each Party shall limit access to Confidential Information to those of its employees, contractors, and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the receiving Party containing protections no less stringent than those herein. 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 (i) was lawfully in the recipient's possession before receiving it from the discloser; (ii) is provided in good faith to the recipient by a third party without breaching any rights of the discloser or any other party; (iii) is or becomes generally available to, or accessible by, the public through no fault of the recipient; or (iv) was or is independently developed by the recipient without reference to the discloser’s Confidential Information. In the event that the recipient or any representative of the recipient becomes legally compelled (by law, rule, regulation, subpoena, or similar court process) to disclose any of the Confidential Information, the recipient will (if permitted to do so) provide the discloser with notice of such circumstances and will limit such disclosure to the required disclosure.
5.2 Security Requirements. Hootsuite has implemented technical and organizational measures consistent with the prevailing industry standards. However, Hootsuite cannot guarantee that unauthorized third parties will never be able to defeat those measures and expressly denies any responsibility for damages, monetary or otherwise, resulting from unauthorized third party access to Customer’s account, use, alteration, or disclosure of Customer’s data.
6. Term and Termination
6.1 Term of Agreement. This Agreement shall commence on the Service Start Date of the first Authorization Form (the “Effective Date”) and shall continue in effect until all Authorization Forms have expired or this Agreement has been terminated in accordance with Section 6.3 or Section 8.1(c) below (the “Term”).
6.2 Term of Authorization Forms. The term of each Authorization Form shall start on the Service Start Date specified on the Authorization Form and shall continue for the term specified therein. Except as otherwise specified in the applicable Authorization Form, all Authorization Forms shall automatically renew for subsequent one-year renewal periods, unless either Party gives the other Party written notice of non-renewal at least 60 days prior to the end of the then-current term. Upon renewal, Hootsuite reserves the right to increase the Fees for Services by providing Customer written notice thereof (which notice may be provided by e-mail) at least 30 days prior to the end of the then-current term.
6.3 Termination for Cause. A Party may terminate this Agreement for cause (i) upon 30 days' written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period; or (ii) immediately 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.
6.4 Effects of Termination. Upon termination of this Agreement for any reason, all Authorization Forms will automatically terminate and: (i) Customer will immediately cease all use of the Services; (ii) Customer will have no further access to its accounts provided by Hootsuite; and (iii) Customer will pay Hootsuite all unpaid amounts owing to Hootsuite.
6.5 Survival. Any provision of this Agreement which, either by its terms or to give effect to its meaning, must survive, and such other provisions which expressly, or by their nature, are intended to survive termination shall survive the expiration or termination of this Agreement.
7. Warranty Disclaimer
SOME COUNTRIES AND JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO CUSTOMER.EXCEPT AS EXPRESSLY PROVIDED HEREIN, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HOOTSUITE EXPRESSLY EXCLUDES AND DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, HOOTSUITE SPECIFICALLY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, AND NONINFRINGEMENT, THAT ITS SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT ITS SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ERROR-FREE. IN ADDITION, HOOTSUITE DOES NOT WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM HOOTSUITE OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. HOOTSUITE DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY IN RELATION TO THE CONTENT MADE AVAILABLE THROUGH THE SERVICES, INCLUDING THE CUSTOMER CONTENT AND MENTIONS, OR ANY CONTENT OR SERVICES PROVIDED BY THIRD PARTIES. HOOTSUITE DOES NOT CONTROL OR VET CUSTOMER CONTENT OR MENTIONS AND IS NOT RESPONSIBLE FOR WHAT USERS POST, TRANSMIT, OR SHARE ON OR THROUGH THE SERVICES. HOOTSUITE IS NOT RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY SUPPORTED PLATFORMS OR THIRD-PARTY SERVICES ASSOCIATED WITH OR UTILIZED IN CONNECTION WITH THE SERVICES, INCLUDING THE FAILURE OF ANY SUCH SUPPORTED PLATFORMS OR THIRD-PARTY SERVICES. HOOTSUITE EXPRESSLY DENIES ANY RESPONSIBILITY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
8. Mutual Indemnification
8.1 Indemnification by Hootsuite. Subject to Customer’s compliance with Section 8.3, Hootsuite shall defend Customer from and against any and all third-party claims that the use of the Platforms as permitted hereunder infringes a valid US or Canada patent right or a copyright right, or misappropriates a third party’s trade secret (a “Claim”) and shall indemnify Customer for any damages finally awarded against, and for reasonable attorneys’ fees incurred by, Customer in connection with any such Claim. Hootsuite will have no liability for any Claim to the extent it arises from (i) a modification of the Platforms by or at the direction of Customer or an Authorized User; (ii) use of the Platforms in violation of this Agreement or applicable law; (iii) use of the Platforms after Hootsuite notifies Customer to discontinue use because of an infringement or misappropriation claim; (iv) the combination, operation, or use of the Platforms with any other software, program, or device not provided or specified by Hootsuite to the extent such infringement would not have arisen but for such combination, operation, or use; or (v) Customer’s use of the Platforms in a manner that is inconsistent with its intended use. For avoidance of doubt, Hootsuite’s indemnification obligations in this Section will not apply to third-party content, Supported Platforms, and/or Third-Party Services accessed through the Services and/or Customer Content and/or Mentions. If a Platform has become, or in Hootsuite’s opinion is likely to become, the subject of any such Claim, Hootsuite may at its option and expense (a) procure for Customer the right to continue using the Platform as set forth hereunder; (b) replace or modify the Platform or certain functionalities to make it non-infringing; or (c) if options (a) or (b) are not reasonably practicable, terminate this Agreement. This Section 8.1 sets forth Hootsuite’s sole liability (and Customer’s sole remedy) regarding infringement or misappropriation of third party rights.
8.2 Indemnification by Customer. Customer shall defend, indemnify, and hold harmless Hootsuite, its Affiliates, directors, officers, employees, and agents from and against all claims, losses, damages, penalties, liability, and costs, including reasonable attorneys’ fees, of any kind or nature which are in connection with or arising out of a claim (a) alleging that the Customer Content or Customer’s use of the Services infringes or violates the intellectual property rights, privacy rights, or other rights of a third party or violates applicable law; (b) relating to, or arising from, Customer Content, or Customer’s breach of Section 2.5, or 2.9; or (c) relating to, or arising from, Third-Party Services (including, without limitation, Customer’s breach of any terms or conditions applicable to any Third-Party Services).
8.3 Indemnification Procedure. The indemnified Party shall (a) promptly give written notice of the Claim to the indemnifying Party; (b) give the indemnifying Party sole control of the defense and settlement of the Claim (provided that the indemnifying Party may not settle or defend any Claim without the indemnified Party’s prior written consent unless it unconditionally releases the indemnified Party of all liability); and (c) provide the indemnifying Party with reasonable cooperation and assistance at the indemnifying Party’s expense.
9. Limitation of Liability
EXCEPT AS EXPRESSLY PROVIDED HEREIN, IN NO EVENT SHALL HOOTSUITE'S AGGREGATE LIABILITY FOR ALL CLAIMS OF ANY KIND, INCLUDING ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BY STATUTE, CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE fees paid by CUSTOMER FOR THE SERVICES HEREUNDER DURING THE three (3) month PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE. CUSTOMER’S EXCLUSIVE REMEDIES FOR ANY INTERRUPTION OR CESSATION OF ACCESS OR TRANSMISSION TO OR FROM THE SERVICES ARE SET FORTH IN THE SLA.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL HOOTSUITE, ITS DIRECTORS, EMPLOYEES, AGENTS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL USE, OR DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SERVICES OR ANY OTHER ASPECT OF THIS AGREEMENT. UNDER NO CIRCUMSTANCES WILL HOOTSUITE BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR CUSTOMER’S ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF Hootsuite WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS. NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR RESTRICT OR SHALL BE CONSTRUED AS EXCLUDING OR RESTRICTING THE LIABILITY OF HOOTSUITE FOR (I) DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF HOOTSUITE, ITS EMPLOYEES, OR ITS AGENTS; (II) WILLFUL MISCONDUCT OF EITHER PARTY; OR (III) ANY LIABILITY WHICH CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.
10.1 Assignment. Neither Party may assign or otherwise transfer any of its rights or obligations hereunder, whether by merger, sale of assets, change of control, operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld), and any attempted assignment without such consent will be void. Notwithstanding the foregoing, Hootsuite may assign this Agreement in its entirety (including all Authorization Forms), without consent of Customer, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
10.2 Relationship of the Parties. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither Party has any authority of any kind to bind the other in any respect.
10.3 Publicity. Customer agrees that Hootsuite may use Customer’s name and may disclose that Customer is a customer of the Services in Hootsuite advertising, press, promotion, and similar public disclosures, including at trade shows and similar events. In addition to the foregoing, Customer hereby grants Hootsuite a non-exclusive license during the Term to list Customer’s name and display Customer’s logo as a Hootsuite customer on Hootsuite’s website.
10.4 Force Majeure. Except for payment obligations, neither Party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such Party’s reasonable control, including the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; and any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts.
10.5 Amendment. Hootsuite reserves the right to modify, supplement, or replace these Terms of Service, effective upon posting on the Hootsuite website or notifying Customer otherwise. Customer’s continued use of the Services after the effectiveness of that update will be deemed to represent its agreement with, and consent to be bound by, the new Terms of Service. Except for changes made by Hootsuite as described here, no other amendment or modification of these Terms of Service shall be effective unless set forth in a written agreement bearing a written signature by Hootsuite and Customer.
10.6 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.
10.7 Notices. For purposes of service messages and notices about the Services, Hootsuite may place a banner notice across its Platform or website to alert Customer of certain changes such as modifications to this Agreement. Alternatively, notice may consist of an email from Hootsuite to an email address associated with Customer’s account, even if Hootsuite has other contact information. Hootsuite may also communicate with Customer or its Authorized Users through its Hootsuite account or through other means including email, mobile number, telephone, or delivery services including the postal service about Customer’s Hootsuite account or services associated with Hootsuite. Customer acknowledges and agrees that Hootsuite shall have no liability associated with or arising from Customer’s failure to maintain accurate contact or other information, including, but not limited to, Customer’s failure to receive critical information about the Services. Notices to Hootsuite must be delivered by email with a duplicate copy sent via registered mail to the following address: Hootsuite Media Inc, 5 East 8th Avenue, Vancouver, British Columbia, V5T 1R6; Attention: General Counsel. This email address provided may be updated as part of any update to this Agreement.
10.8 Waivers. No waiver of any provision of this Agreement is binding unless it is in writing and signed by all 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.
10.9 Governing Law. 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. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees.