Last modified October 27, 2015
Welcome to Hootsuite. These terms and conditions (“Terms of Service” or “Agreement”) govern your access to and use of the Free and Pro products and services offered by Hootsuite Media Inc. (“Hootsuite”) accessible via the website www.hootsuite.com, including successor domain names or sites as well as the Ow.ly services (the “Site”), and any and all information, text, graphics, photos, or other materials uploaded, downloaded, or appearing on the Services (as defined below).
Hootsuite Enterprise and all other products and services made available to Hootsuite Enterprise users are not governed by these terms, but by the terms published at www.hootsuite.com/enterpriseterms and Hootsuite Podium is governed by the terms published at https://education.hootsuite.com/pages/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 reserves the right, at any time, to update and change any or all of these Terms of Service, in its sole discretion, including but not limited to the fees and charges associated with the use of the Services. If Hootsuite does so, it will post the modified Terms of Service on the Site, though we will notify you of any changes that, in our sole discretion, materially impact 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/terms. When Hootsuite changes these Terms of Service, Hootsuite will modify the "Last Modified" date above.
“Authorization Form” means a document issued by Hootsuite and executed or otherwise agreed upon by authorized representatives of the Parties which specifies, among other things, a description of the Services, the Fees (as defined below), the number of Seats purchased, the Term (as defined below), and any other details specifically related to the Services.
“Authorized Users” means individuals who are directly accessing the Services via an online sign-up process, or individual users authorized by you to use the Services and who you have supplied user identifications and passwords to. Authorized Users may include your employees, consultants, contractors, agents, or your other designees, 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 your behalf in relation to the use of the Services.
“Fair Use Policy” means the limits placed on usage as described in Section 2.6.
“Mentions” means the information, including links, posts, and excerpts, that has been made publicly available and obtained by Hootsuite on your behalf from the Internet, and data derived therefrom, including reports, summaries, graphs, and charts.
“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.
“Seat” means a single subscription associated with a single log-in to the Site, assigned to one Authorized User.
“Services” means Hootsuite Free, Hootsuite Pro, and other Hootsuite Free and Pro products and services made available via Hootsuite’s proprietary software delivered through the Site and mobile applications that provide for a single log-in, centralized dashboard that enables you and Authorized Users to manage and publish social media content to multiple Supported Platforms, including any modifications or Updates (as defined below).
“Supported Platform(s)” means the social networking site(s) currently supported by the Services, including Twitter, Facebook, LinkedIn, Instagram, and other social networking sites as described via the Site.
“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).
2. Hootsuite Services
2.1 Services and Support.
If you select Hootsuite Free: During the Term (as defined below), subject to the terms and conditions of this Agreement, and solely for your personal or own business purposes, Hootsuite shall use commercially reasonable efforts to make the Hootsuite Free services available to you.
If you select Hootsuite Pro: During the Term (as defined below), subject to the terms and conditions of this Agreement, and solely for your personal or internal business purposes, Hootsuite shall use commercially reasonable efforts to make the Hootsuite Pro services available to you and your Authorized Users for the number of Seats purchased. Hootsuite will provide Hootsuite Pro customers with standard support 24 hours per day from Monday to Friday, and between the hours of 9am and 5pm Pacific Time on Saturday, Sunday, and on statutory holidays in Canada. You may submit a maximum of 4 support tickets per day. Expected response times after a ticket has been submitted by a Hootsuite Pro user during the support hours through http://hootsuite.com/help shall be 24 hours from the time the ticket is logged. If you purchased Hootcare, Hootsuite will commit to a first response within 4 hours of ticket being logged during business hours.
If you select other Hootsuite Free or Hootsuite Pro products and services: During the applicable term, subject to the terms and conditions of this Agreement (including any terms that only apply to your access to and use of certain Hootsuite services), and solely for your personal or internal business purposes, Hootsuite shall use commercially reasonable efforts to make such Hootsuite services available to you and your Authorized Users, if applicable, for the quantities purchased.
2.2 Updates and Functionalities. You acknowledge 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”). You acknowledge 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 you without entitling you to refund, credit, or other compensation.
2.3 Acceptable Use. You shall (i) be responsible for your and your Authorized Users’ compliance with these Terms of Service, 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 you acquired or generated Customer Content; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, including keeping you password and user name confidential and not permitting any third party to access or use your user name, password, or account for the Services; (iv) be solely responsible and liable for all activity conducted through your account in connection with the Services; (v) promptly notify Hootsuite if you become aware of or reasonably suspects any security breach, including any loss, theft, or unauthorized disclosure or use of your (or any Authorized User’s) user name, password, or account; (vi) use the Services only in accordance with applicable laws and government regulations; (vii) comply in all respects with all applicable terms of the Third-Party Services that you subscribe to or otherwise access in connection with your use of the Services. You must not (a) make the Services available to anyone other than to your Authorized Users; (b) allow more than one individual Authorized User to use a Seat; (c) sell, trade, or otherwise transfer your 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.
2.4 Mentions. You understand that by using the Services you may be exposed to third-party content, information, and Mentions that might be unlawful, offensive, harmful, inaccurate or otherwise inappropriate. Hootsuite does not own, control, or review Mentions, and unless Customer creates the content of Mentions, Mentions shall not be considered “Customer Content” under any circumstances. Mentions may be indecent, offensive, inaccurate, unlawful, or otherwise objectionable. 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. Your use of Mentions is at your sole risk, and Hootsuite shall not be liable to you or any third party in relation to Mentions.
2.5 Fair Use Policy. Hootsuite may suspend your access to the Services for abusive practices that degrade the performance of the Services for you and/or other customers of Hootsuite.
2.6 Third-Party Products and Services. You acknowledge that the Services may enable or assist you to access, interact with, and/or purchase services from Supported Platforms and other third parties via third-party websites or applications (collectively, the “Third-Party Services”). When you access the Third-Party Services, you will do so at your own risk. Any use of Third-Party Services is governed solely by the terms and conditions of such Third-Party Services (and you shall comply with all such terms and conditions), and any contract entered into, or any transaction completed via any Third-Party Services, is between you and the relevant third party, and not Hootsuite. Hootsuite makes no representation and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such Third-Party Services or any transactions completed and any contract entered into by you with any such third party.
2.7 Non-Exclusivity. You acknowledge that the rights granted to you 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 you 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. You 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 you, shall not create any confidentiality obligation for Hootsuite notwithstanding anything else. You shall, and hereby do, 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. You grant Hootsuite a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 9.1) 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 your use of the Services and providing Services to you. Hootsuite may also use Customer Content for the purpose of supporting and developing the Site, 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, you and your 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 there
4. Hootsuite Products and Fees
4.1 Purchases By Authorization Form. If an Authorization Form is issued for the purchase of Services, you agree to pay all fees as and when described per the Authorization Form(s). Hootsuite shall invoice you 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. You shall make payments to the entity and address set forth in the invoice.
4.2 Hootsuite Pro and Other Paid Services. For Hootsuite Pro and other paid services made available through Hootsuite Free and Hootsuite Pro (“Paid Services”), you must provide Hootsuite with a valid credit card or other forms of cash payment (e.g., PayPal account) to pay for such services. If you are purchasing Hootsuite Pro or Paid Services via an online purchase, you can choose to purchase on a monthly or yearly subscription. In addition, you agree that Hootsuite has permission to retain and/or share with financial institutions and payment processing firms (including any institutions or firms Hootsuite retains in the future) your submitted payment information in order to process your purchase. Depending on where you transact with us, the type of payment method used and where your payment method was issued, your transaction with us may be subject to foreign exchange fees or differences in prices, including because of exchange rates. Hootsuite does not support all payment methods, currencies, or locations for payment. If the payment method you use with us, such as a credit card, reaches its expiration date and you do not edit your payment method information or cancel or downgrade your account to a Hootsuite Free account, you authorize Hootsuite to continue billing your credit card and/or PayPal account and you remain responsible for any uncollected amounts. All applicable taxes are calculated based on the billing information you provide us at the time of purchase.
4.3 Free Trial Period. If you sign up online for a Hootsuite Pro account with a free initial trial period (the “Free Trial”), you must provide Hootsuite with a valid credit card or PayPal account. If you do not cancel your account or downgrade your Hootsuite Pro account within the first 30 days after it was initially created, your credit card or PayPal account will automatically be billed starting on the first day after the Free Trial is over. If you cancel or downgrade your Hootsuite Pro account prior to the beginning of the 31st day, no charges will be put through your credit card or PayPal account. Please note that other Paid Services (such as apps purchased via the Hootsuite app directory) will require to be uninstalled separately via the app directory to avoid charges being incurred on the 31st day. The Free Trial is only available to first time users of Hootsuite Pro.
4.4 Subscription Services; Auto-renewal and Cancellation. If you are purchasing Hootsuite Pro or Paid Services on a subscription basis, you can choose to purchase on a monthly or yearly subscription and your subscription will renew automatically. Subscriptions are billed in advance on a monthly or yearly basis (as per the option chosen when you purchased such services) and are non-refundable for the subscription period they are purchased for. You agree that Hootsuite may process your credit card or PayPal account on each monthly, annual, or other renewal term (based on the applicable billing cycle), on the calendar day corresponding to the first day you subscribed to a paid subscription. If your paid subscription to Hootsuite Pro or other Paid Services began on a day not contained in a subsequent month (e.g., your service began on January 30 and there is no February 30), Hootsuite will process your payment on the last day of such month. You may elect to cancel or downgrade your Hootsuite Pro account at any time by following the steps outlined here: https://help.hootsuite.com/hc/en-us/articles/204596100-Downgrade-to-Hootsuite-Free-Pro-and-Pro-Trial-. Please note that other Paid Services (such as apps purchased via the Hootsuite app directory) will require to be uninstalled separately via the app directory. If you subscribed to a monthly plan, your Hootsuite Pro account will be immediately downgraded to a Hootsuite Free account, but no credit will be issued for any prepaid fees for your Hootsuite Pro account. If you purchased Paid Services in association with a monthly plan, Hootsuite will issue Hootsuite credits equivalent to the prorated prepaid fees of such Paid Services on the date of the cancellation. Such credits are non-refundable, but can be used against the purchase of any future Hootsuite services. If you subscribed to a yearly plan, any cancellation will only be effective at the end of the then-current annual billing period and no credits or refunds will be issued to you for prepaid fees.
4.5 Late Payment. If any amounts due 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 10 days' written notice, Hootsuite may suspend your access to the Services if Hootsuite does not receive the amounts invoiced hereunder at the expiration of such period.
4.6 Taxes and Withholdings. You are responsible for paying all Taxes associated with your purchase of services. If Hootsuite has the legal obligation to pay or collect Taxes for which you are responsible under this Section, the appropriate amount shall be invoiced to and paid by you, unless you provide Hootsuite with a valid tax exemption certificate authorized by the appropriate taxing authority. 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 you are 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. Term and Termination
5.1 Hootsuite Free and Pro Services. If you sign-up for a Hootsuite Free or Hootsuite Pro account, this Agreement shall commence on the day you access the Services for the first time and shall continue until your account is cancelled and you cease using our Services (the “Term”).
5.2 Termination. If you violate the letter or spirit of these Terms of Service, abuse the Services, or otherwise create risk or possible legal exposure to Hootsuite, Hootsuite can terminate or suspend your Hootsuite Account at our sole discretion. Hootsuite will notify you by email or at the next time you attempt to access your account. You may also cancel or disable your Hootsuite Free account at any time. For cancellation procedure, and for further assistance, see the instructions published at: https://help.hootsuite.com/hc/en-us/articles/204595980-Cancel-Your-Hootsuite-Account.
5.3 Effects of Termination. Upon termination of this Agreement for any reason, (i) you will immediately cease all use of the Services; (ii) you will have no further access to your accounts provided by Hootsuite; and (iii) you will pay Hootsuite all unpaid amounts owing to Hootsuite.
5.4 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.
6. 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 YOU. 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 YOUR 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 THIRD-PARTY SERVICES OR SUPPORTED PLATFORMS ASSOCIATED WITH OR UTILIZED IN CONNECTION WITH THE SERVICES, INCLUDING THE FAILURE OF ANY SUCH THIRD-PARTY SERVICES OR SUPPORTED PLATFORMS. 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. IF YOU ARE DISSATISFIED OR HARMED BY HOOTSUITE OR ANYTHING RELATED TO HOOTSUITE, YOU MAY CANCEL YOUR HOOTSUITE ACCOUNT AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 4.4 (AUTO-RENEWAL AND CANCELLATION) OR SECTION 5.2 (TERMINATION), AS APPLICABLE, AND SUCH TERMINATION SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY (AND HOOTSUITE’S SOLE AND EXCLUSIVE LIABILITY).
7.1 Your Indemnification. You 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 your 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 your breach of Section 2.3 or Section 2.6; or (c) relating to, or arising from, Third-Party Services.
8. Limitation of Liability
SOME COUNTRIES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU. TO THE MAXIMUM EXTENT PERMITTED BY LAW, 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 GREATER OF (A) THE fees paid by YOU FOR THE SERVICES HEREUNDER DURING THE three (3) month PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE AND (B) US$500. HOOTSUITE DOES NOT OFFER ANY WARRANTY OR REMEDIES FOR THE INTERRUPTION OR CESSATION OF ACCESS OR TRANSMISSION TO OR FROM THE SERVICES.
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 YOUR 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 HOOTSUITE; OR (III) ANY LIABILITY WHICH CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.
9.1 Assignment. You may not assign or otherwise transfer any of your rights or obligations hereunder, whether by merger, sale of assets, change of control, operation of law or otherwise, without the prior written consent of Hootsuite (not to be unreasonably withheld), and any attempted assignment or transfer without such consent will be void. Hootsuite may freely assign or delegate all rights and obligations under this Agreement, fully or partially without notice to you. Hootsuite may also substitute, by way of unilateral novation, effective upon notice to you, Hootsuite Media Inc. for any third party that assumes our rights and obligations under this Agreement.
9.2 Amendment. Hootsuite reserves the right to modify, supplement, or replace the terms of this Agreement, effective upon posting on the Hootsuite website or notifying you otherwise. Your continued use of the Services after the effectiveness of that update will be deemed to represent your agreement with, and consent to be bound by, the new terms. Except for changes made by Hootsuite as described here, no other amendment or modification of this Agreement shall be effective unless set forth in a written agreement bearing a written signature by Hootsuite and you.
9.3 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.
9.4 Notices. For purposes of service messages and notices about the Services, Hootsuite may place a banner notice across its pages to alert you to certain changes such as modifications to this Agreement. Alternatively, notice may consist of an email from Hootsuite to an email address associated with your account, even if Hootsuite has other contact information. You also agree that Hootsuite may communicate with you through your Hootsuite account or through other means including email, mobile number, telephone, or delivery services including the postal service about your Hootsuite account or services associated with Hootsuite. You acknowledge and agree that Hootsuite shall have no liability associated with or arising from your failure to do so maintain accurate contact or other information, including, but not limited to, your failure to receive critical information about the Services. You may provide legal notice to Hootsuite via email with a duplicate copy sent via registered mail to Hootsuite Media Inc, 5 East 8th Avenue, Vancouver, British-Columbia, BC, V5T 1R6; Attention: General Counsel. The email address provided may be updated as part of any update to these Terms of Service.
9.5 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.
9.6 Nature of Relationship. 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.
9.7 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.
9.8 Governing Law. This Agreement and your relationship with Hootsuite shall be governed exclusively by, and will be enforced, construed, and interpreted exclusively in accordance with, the laws applicable in the province of British Columbia, Canada and shall be considered to have been made and accepted in British-Columbia, Canada, without regard to its conflict of law provisions. 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.
10. Hootsuite Campaigns Free and Pro – Additional Terms
If you select Hootsuite Campaigns Free or Hootsuite Campaigns Pro, the following Additional Terms apply to your access to and use of such Services:
10.1 Additional Definitions.
“Campaigns” means campaigns created by you or your Authorized Users, including contests, sweepstakes, galleries, and other market data gathering activities on Supported Platforms, via the Hootsuite Campaigns Platform.
“Campaign Page” means a webpage for a particular Campaign that may display or publish Customer Content, Mentions, and/or Submitted Content.
“Campaign Participant” means a person who participates in a Campaign.
“Hootsuite Campaigns Platform” means Hootsuite’s proprietary software, content, text, images, media, and other materials delivered through Hootsuite’s web platform campaigns.hootsuite.com (including successor domain names and sites) and mobile applications that enable you and your Authorized Users to create and manage Campaigns, including any modifications or Updates.
“Submitted Content” means all information (including personal information) and data or any other content in any media and format provided or made available to you by Campaign Participants.
10.3 Submitted Content. You shall be solely responsible for the means by which you acquire or generate Submitted Content. You understand that, by using the Services, you may be exposed to Submitted Content that might be unlawful, offensive, harmful, inaccurate, or otherwise inappropriate. Unless you create the content of the Submitted Content, Submitted Content shall not be considered “Customer Content” under any circumstances. Hootsuite has no obligation to preview, verify, flag, modify, filter, or remove any Submitted Content, even if requested to do so, although Hootsuite may do so in its sole discretion. Your use of Submitted Content is at your sole risk, and Hootsuite shall not be liable to you or any third party, including any Campaign Participant, in relation to Submitted Content.
To the extent Submitted Content is accepted for a Campaign, you shall (i) require each Campaign Participant to be responsible for its own Submitted Content and the consequences of posting or publishing such Submitted Content; and (ii) require each Campaign Participant to affirm, represent, and warrant that such Campaign Participant (a) owns or has the necessary licenses, rights, consents, and permissions to use and authorize you and Hootsuite to use all intellectual property rights in and to its Submitted Content and (b) has the written consent, release, and/or permission of each and every identifiable individual person in its Submitted Content to use the name and likeness of every such person, in order to enable inclusion and use of the Submitted Content in the manner contemplated by the Campaign and applicable official rules and on the Campaign Page.
10.5 Your Additional Indemnification. You 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 any Campaign or Submitted Content infringes or violates the intellectual property rights, privacy rights, or other rights of a third party or violates applicable law; or (b) relating to, or arising from, (i) any Campaign or Submitted Content, or entries to or from a Campaign or a Campaign Page or (ii) your breach of your obligations, representations, or warranties in Section 10.2 or 10.3 above.