Socialie Apps LLC Subscription Agreement

This Subscription Agreement (this “Agreement”) is entered into by and between Socialie Apps, LLC, a Pennsylvania limited liability company (“Socialie”), and the entity listed in the applicable Purchase Order (“PO”) referencing this Subscription Agreement (“Subscriber”). Each of Socialie and Subscriber may be referred to individually in this Agreement as a “Party” and together as the “Parties.” By executing the applicable PO, Subscriber (1) represents that Subscriber has read this Agreement and understands its terms and conditions; and (2) agrees to be legally bound by all the terms and conditions of this Agreement. This Agreement is effective as of the date set forth on the applicable PO (“Effective Date”).

1. PLATFORM ACCESS; RESTRICTIONS; SUPPORT.
   • Access. Subject to the terms and conditions of this Agreement, Socialie will provide Subscriber with access and use of Socialie’s proprietary software application (the “Platform”) during the Term solely for managing Subscriber’s social media campaign(s) related to the Subscriber’s business through the number of Suggester seats set forth in one or more mutually agreed purchase orders (each, a “PO”). Each Suggester seat may be used by one (1) named employee of Subscriber. Subscriber’s designated Suggesters may use the Platform to suggest social media posts to an unlimited number of Publishers. Subscriber may add additional Suggester seats by executing additional POs adding such seats. “Suggesters” are users that are able to draft and suggest social media posts to “Publisher” users through the Platform. Publishers are users who may publish suggested social media posts on the Publisher’s social media accounts.
   • Restrictions. Subscriber agrees that it will not, and will not allow its Suggesters to: (i) copy, reproduce, create derivative works of, disclose or publicly display the Platform; (ii) decompile, disassemble, reverse engineer or otherwise attempt to determine the functionality of the Platform; (iii) directly or indirectly license, distribute, resell, rent, lease, subcontract, operate as a service bureau or otherwise make the Platform available to any third party; (iv) use the Platform for purposes of monitoring its availability, performance or functionality, or for any other benchmarking, or to develop a product or service that is the same or substantially similar to the Platform; (v) disclose or share any passwords or other security or authentication with respect to the Platform (including, administrative credentials for Suggesters) to or with any other person or entity; (vi) use the Platform for a purpose other than that set forth in this Agreement or in a manner that violates any applicable law, rule or regulation; or (vii) remove, conceal or alter any personally identifiable information, identification, copyright or proprietary rights notices or labels from or on the Platform.
   • User Access. Subscriber acknowledges and agrees that Subscriber’s authorized Suggester and Publisher users shall not be allowed to access or use the Platform unless and until they agree to abide by the Platform’s then-current End User License Agreement. Subscriber agrees not to provide any of its Suggesters or Publishers with use of or access to the Platform unless such Suggesters and Publishers have agreed to abide by the Platform’s then-current End User License Agreement.
   • No Implied License. This Agreement and the conduct of the Parties in connection with this Agreement are not intended to, and shall not be construed to, convey any rights to Subscriber or any third party under any Intellectual Property Rights (as such term is defined in Section 6) of Socialie in any manner, including as a result of patent exhaustion, estoppel or implied license doctrines in any jurisdiction or any similar doctrine, whether by operation of law or otherwise.
   • Support. In exchange for the support fees to be paid by Subscriber, Socialie shall provide telephone and e-mail support and customer service at the level specified in the PO. Support does not include services that require modification of code. Unless otherwise specified in the PO, Socialie will provide support for Suggesters only and Subscriber will be responsible for providing support and guidance to Publishers regarding use of the Platform. Socialie will provide Subscriber with updates and bug fixes it makes commercially available to its customer base as a whole.
2. RESPONSIBILITIES OF SUBSCRIBER; PUBLISHERS.
   • Protection of User Access IDs. Subscriber will maintain, and will cause its Suggesters to maintain, user identifications and passwords in strict confidence. Subscriber is responsible for all activity occurring under the accounts of its Suggesters and Publishers and Subscriber shall be solely responsible for any and all actions of Suggesters and Publishers as if such users were “Subscriber” hereunder.
   • Posting of Harmful Material. Subscriber agrees it shall not post on or upload to the Platform or any forum available to Publishers on the Platform any communications that: (i) violate or infringe upon the Intellectual Property Rights, rights of privacy or publicity, moral rights or any other proprietary rights of any third party; (ii) are unlawful, defamatory, threatening or are otherwise offensive or objectionable; (iii) contain a virus or any other harmful or malicious code or device; (iv) violate any applicable local, state, national or international law or regulation; or (iv) otherwise violate the terms of this Agreement, or any use Socialie deems unacceptable in its sole discretion.
   • Third Party Services. The Platform may allow Subscriber and its users to interface or interact with, access and/or use compatible third party services, products, technology and content, particularly social media services (collectively, “Third Party Services”). Subscriber acknowledges and agrees that: (i) Socialie is not the provider of the Third Party Services and is not responsible for any compatibility issues, errors or bugs in the Platform or Third Party Services caused in whole or in part by the Third Party Services or any update or upgrade thereto; and (ii) Subscriber is solely responsible for maintaining the Third Party Services and obtaining any associated licenses and consents necessary to use the Third Party Services in connection with the Platform.
3. TERM; TERMINATION.
   • Term. This Agreement shall commence as of the Effective Date and shall remain in effect until the terms of all subscriptions provided under any PO have expired or have been terminated in accordance with this Agreement (the “Term”). The initial term of a subscription is as specified in a PO or, if the PO does not specify an initial term , the initial term shall be one (1) year, unless earlier terminated as provided herein (the “Initial Subscription Term”). The applicable subscription shall automatically renew for additional one (1) year periods (each a “Renewal Subscription Term”), unless either Party provides notice of termination or non-renewal no less than thirty (30) days prior to expiration of the Initial Subscription Term or then-current Renewal Subscription Term.
   • Termination. If either party fails to observe or perform any material obligation under this Agreement, the non-defaulting party may give written notice to the defaulting party specifying the material failure. If the material failure is not corrected or a mutually agreed plan to correct the failure has not been established within thirty (30) days after the date of such notice, the non-defaulting party may terminate this Agreement upon written notice to the defaulting party. Notwithstanding the foregoing, in the event Subscriber or any Suggester or Publisher of Subscriber breaches any term of Socialie’s End User License Agreement, Socialie may terminate this Agreement immediately upon notice to Subscriber and/or suspend access to the Platform without terminating this Agreement and without advance notice.
   • Effect of Termination. Upon termination or expiration of this Agreement, the Subscriber shall (i) immediately cease use of the Platform, (ii) return to Socialie all user manuals and other documentation in its possession, and (iii) pay all previously accrued amounts due to Socialie under this Agreement in accordance with Section 4. Sections b, 1.d, 3.c, 4.b, and 6 through Section 12 shall survive the expiration or termination of this Agreement for any reason.
4. FEES AND PAYMENT.
   • Subscription Fee. Subscriber shall pay a subscription fee for the Initial Subscription Term of each subscription in the amount set forth in the applicable PO. The subscription fee for each Initial Subscription Term is due upon execution of the applicable PO. All subscription fee amounts to be paid by Subscriber hereunder for Renewal Subscription Terms are due and payable in advance on the first day of the applicable Renewal Subscription Term. Socialie may increase the subscription fee in any Renewal Subscription Term by providing written notice to Subscriber. Fees are non-refundable unless otherwise stated in the applicable PO.
   • Payment. All payments not made by Subscriber when due shall be subject to late charges of the lesser of (i) one and one-half percent (1.5%) per month of the overdue amount or (ii) the maximum amount permitted under applicable law. Subscriber shall pay all sales, use, value-added, ad valorem, excise and any other similar taxes of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by Subscriber to Socialie hereunder, other than any taxes imposed on Socialie’s income.
5. DATA.
   • Subscriber Materials. As between Subscriber and Socialie, subject to Section 5.b, Subscriber will own and retain all right, title and interest in and to all Subscriber Materials. “Subscriber Materials” means all information, data, content and other materials submitted, posted or otherwise provided by or on behalf of Subscriber or its Suggester users through the Platform, but excluding, for clarity, any information, data, content or materials owned or controlled by Socialie and made available through the Platform.
   • Socialie Use of Subscriber Materials. Subscriber hereby grants to Socialie a non-exclusive, worldwide, royalty-free and perpetual right and license to use, reproduce, display, perform, modify and make derivative works of the Subscriber Materials in connection with the operation, improvement and provision of the Platform or any other business purpose (including for the purpose of improving Socialie’s products, services, methods and processes). Subscriber represents, warrants and covenants to Socialie that it has obtained and will obtain all necessary consents, permissions and licenses with respect to any and all Subscriber Materials to the extent necessary: (i) for Subscriber and Socialie to comply with all applicable laws, rules and regulations including all applicable data protection and privacy laws; and (ii) for Subscriber to grant the licenses contemplated by this Section without violating any third party Intellectual Property Rights or privacy rights.
   • Personal Information. Socialie may use information relating, or identifiable to, any natural person in accordance with the terms of its privacy policy. In the event Socialie processes “personal data” as defined by and subject to any national law of an EU member state adopted pursuant to Regulation (EU) 2016/679, the United Kingdom Data Protection Act of 2018 or United Kingdom GDPR, or the Switzerland Federal Act on Data Protection (collectively, “Personal Data”) on Subscriber’s behalf pursuant to this Agreement, then Subscriber and Socialie agree to comply with the Socialie Data Processing Agreement.
6. CONFIDENTIAL INFORMATION.
   • Obligations. As used herein, “Confidential Information” means all non-public information relating to a Party’s business activities that is disclosed by such Party (“Disclosing Party”) to the other Party (“Receiving Party”) during the Term, that is designated as proprietary or confidential or that reasonably should be understood to be proprietary or confidential to the Disclosing Party. Each Party shall use the same degree of care to safeguard the confidentiality of the Confidential Information that it uses to safeguard the confidentiality of its own confidential information, but in no event less than reasonable care. Without limiting the foregoing, each Receiving Party agrees not to disclose, or permit any third party to disclose, the Confidential Information of the Disclosing Party (or any portion thereof) to any third party without the prior written consent of the Disclosing Party except: (i) to the Receiving Party’s employees, representatives, or contractors who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by nondisclosure restrictions at least as protective as those set forth in this Agreement; or (ii) as may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure. It is expressly agreed by the Parties that Confidential Information of Socialie includes the Platform.
   • Exclusions. The following shall not be deemed to be Confidential Information for purposes of this Agreement: (i) information already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party without an obligation of confidence; (ii) information generally known to the public other than as a result of disclosure in violation of this Section; (iii) information lawfully obtained from any third party that has no duty or obligation of confidentiality with respect to such information; and (iv) information developed by the Receiving Party independently and without reference to information provided by the Disclosing Party.
   • Equitable Relief. The Parties recognize that a breach of this Section would result in irreparable harm for which monetary damages would not be adequate. In the event of such breach, and without limiting the right of a Party to seek any other remedy or relief to which it may be entitled under law, each Receiving Party agrees that the Disclosing Party will be entitled to seek equitable relief, including temporary and permanent injunctive relief and specific performance, without the posting of a bond.
7. INTELLECTUAL PROPERTY RIGHTS.
   • Platform. All right, title and interest in and to the Platform and all Intellectual Property Rights therein are and shall remain exclusively with Socialie, its licensors and their respective successors and assigns. Subscriber is not granted any right, title or interest whatsoever in the Platform, other Confidential Information of Socialie, or any Intellectual Property Rights associated with any of the foregoing. To the extent Subscriber provides any verbal or written ideas or feedback to Socialie concerning the Platform (“User Feedback”), Subscriber hereby assigns, transfers and conveys to Socialie, or its designee, all worldwide right, title, and interest in and to any and all User Feedback, including any ideas, inventions, discoveries, original works of authors hip, findings, conclusions, concepts, and improvements in such User Feedback. “Intellectual Property Rights” means all intellectual property and other similar proprietary rights, in any jurisdiction, including rights in and to: (i) trade secrets, know-how and other confidential or non-public business information; (ii) original works of authorship and any moral rights relating thereto; (iii) trademarks, service marks, trade dress and other indications of origin; and (iv) patents, invention disclosures, inventions and discoveries.
   • Trademark License. Subscriber hereby grants to Socialie a worldwide, non-exclusive, non-transferable and non-sublicensable license to use Subscriber’s trademarks, service marks, name and logos (“Marks”) during the Term solely as provided by Subscriber through the Platform and solely to indicate to Subscriber’s users that they are using Subscriber’s Platform account. Socialie will promptly discontinue the display or use of any of Subscriber’s Marks upon the earlier of the termination of this Agreement or when requested by Subscriber.
8. DISCLAIMER. THE PLATFORM IS PROVIDED “AS-IS” WITHOUT ANY REPRESENTATIONS OR WARRANTIES. SOCIALIE EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WHETHER ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE, INCLUDING ANY WARRANTY OF ACCURACY, COMPLETENESS, PERFORMANCE, CURRENCY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE. WITHOUT LIMITING THE FOREGOING, SOCIALIE HEREBY DISCLAIMS ANY WARRANTY THAT USE OF THE PLATFORM WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED. The foregoing provisions shall be enforceable to the maximum extent permitted by applicable law.
9. LIMITATION OF LIABILITY; INDEMNIFICATION.
   • Limitation on Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, BREACH OF SECURITY, OR LOST OR DAMAGED DATA) ARISING OUT OF OR CONNECTED IN ANY WAY WITH THIS AGREEMENT, THE PLATFORM, OR ANY SERVICES RENDERED BY SOCIALIE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCLUDING THE PARTIES’ INDEMNIFICATION OBLIGATIONS AND LIABILITY FOR THE INFRINGEMENT OF EITHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, THE TOTAL LIABILITY OF EITHER PARTY TO THE OTHER PARTY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) SHALL NOT EXCEED THE TOTAL FEES PAID BY SUBSCRIBER HEREUNDER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY. The foregoing provisions shall be enforceable to the maximum extent permitted by applicable law.
   • Subscriber Indemnification. Subscriber shall defend, indemnify, and hold harmless Socialie, and its officers, directors, managers, equity holders, employees, agents, contractors, suppliers, and licensors against all costs, expenses, losses, and damages (including reasonable attorneys’ fees and costs) incurred or awarded as a result of or in connection with claims of third parties (including Subscriber’s employees) against Socialie based on or arising directly or indirectly out of (i) Subscriber’s or its Suggester’s use of the Platform, (ii) a breach by Subscriber of any terms of this Agreement, or (iii) Subscriber’s violation of any applicable laws or regulations.
10. DISPUTES. The Parties shall use reasonable efforts to resolve amicably any disputes that may relate to or arise under this Agreement. Any disputes that cannot be resolved in such manner shall be settled exclusively by arbitration conducted under the auspices of the American Arbitration Association (the “AAA”) in Philadelphia, Pennsylvania, in accordance with the Commercial Arbitration Rules of the AAA; provided that either Party may seek injunctive relief from any court of competent jurisdiction. The award rendered in such arbitration shall be final, non-appealable and bind the Parties, and any court having jurisdiction with respect thereto can enter judgment upon the award. Without limiting the generality of the foregoing, the following specific provisions shall also apply: (a) the proceedings shall be held before a single arbitrator; (b) the arbitrators shall apply the law chosen in Section b; (c) the costs of the arbitration will be allocated among the Parties in the discretion of the arbitrator; and (d) the decision of the arbitrator shall be in a writing stating the facts and law upon which the decision rests and shall be given no later than ten (10) days following the conclusion of the necessary hearings. Notwithstanding the foregoing, Socialie shall be permitted to bring any claim relating to the infringement of Intellectual Property Rights in any court of competent jurisdiction.
11. COMPLIANCE WITH LAWS; EXPORT REGULATIONS. The United States Government regulates the transfer of technology across national boundaries. Subscriber shall not acquire, ship, transport, export or re-export the Platform or any part thereof, directly or indirectly, into any country in violation of any applicable law (including the United States Export Administration Act and the regulations promulgated thereunder) nor will Subscriber use the Platform or any part thereof for any purpose prohibited by such laws or any other laws.
12. GENERAL.
    • Entire Agreement. This Agreement sets forth the entire agreement and understanding of the Parties relating to the subject matter hereof and supersedes any and all prior oral and written agreements, understandings and quotations relating thereto. No waiver, amendment, alteration, modification, or cancellation of any of the provisions of this Agreement shall be binding unless made in writing and signed by the parties.
    • Governing Law; Jurisdiction; Venue. This Agreement will be governed by, construed and enforced in accordance with the laws of the Commonwealth of Pennsylvania without regard for conflict of law rules. Subject to Section 10, any suit, action, or claim arising under, or related to, this Agreement must be brought exclusively in the courts located in Philadelphia, Pennsylvania.
    • Severability. If any provision of this Agreement is invalid or unenforceable, such provision will be enforced only to the extent that it is not in violation of such law or is not otherwise unenforceable and all other provisions of this Agreement will remain in full force and effect.
    • Waiver. The failure of a Party in any one or more instances to insist upon strict performance of any of the terms of this Agreement will not be construed as a waiver or relinquishment, to any extent, of the right to assert or rely upon any such terms on any future occasion.
    • Force Majeure. Neither Party will be liable for any delay or failure of its performance under this Agreement that results from causes beyond its control and not reasonably foreseeable by the affected Party, each despite commercially reasonable operations and preparations.
    • Notices. Any notice required or permitted to be given under this Agreement must be in writing and will be deemed effective (i) if given by personal delivery, upon such personal delivery, (ii) if given by nationally-recognized courier or mail service, at the time that the notice is delivered to the receiver’s premises according to the tracking records of the courier or mail service at the address provided on the applicable PO. Copies shall be sent by email to Socialie atkristin@socialie.com, and to Subscriber at the email address provided on the PO. Either Party may change its address for notice by written notice to the other Party.
    • Assignment of Agreement. Neither Party may sublicense, lease, assign or otherwise transfer, in whole or in part, this Agreement without the prior written consent of Socialie; provided, however, that notwithstanding the foregoing, any or all of the rights and interests of any Party under this Agreement may be assigned: (i) to any affiliate of such Party, (ii) to any purchaser of substantially all of the assets of such Party, or (iii) as a matter of law to the surviving entity in any merger, consolidation, share exchange or reorganization involving such Party. Any assignment or purported assignment made in violation of the foregoing provision shall be void ab initio.
    • Counterparts. This Agreement and any PO incorporating this Agreement by reference may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. The reproduction of signatures by means of facsimile device or other electronic means shall be treated as though such reproductions are executed originals.
    • Rules of Construction. Definitions contained in this Agreement apply to singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms. Words in the singular shall be held to include the plural and vice versa, and words of one gender shall be held to include the other gender as the context requires. The terms “hereof,” “herein,” “hereby” and “herewith” and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement as a whole and not to any particular provision of this Agreement. The terms “includes” and the word “including” and words of similar import shall be deemed to be followed by the words “without limitation.” Section and subsection references are to the Sections and subsections to this Agreement unless otherwise specified. Headings and captions herein are inserted for convenience, do not constitute a part of this Agreement, and shall not be admissible for the purpose of proving the intent of the Parties.
    • Publicity Reference. Socialie may include the Subscriber in its general listing of customers, reference lists, press releases, success stories and other marketing materials. Subscriber agrees to make appropriate personnel available at mutually agreed times and locations and for mutually agreed durations to be interviewed for a Socialie case study that describes Subscriber’s use of the Platform. Socialie may publish the case study without limitation with respect to quantity and form; provided, that prior to publishing the case study, Socialie will provide the same to Subscriber for Subscriber’s review and approval, which approval shall not be unreasonably withheld, conditioned or delayed.

 

Last Revised: August, 2022