Socialie Apps LLC Subscription Agreement

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 PO or SOW 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 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”).

BACKGROUND

A. Socialie owns certain proprietary software known as Suggest (the “Platform”), which enables entities to manage social media campaigns and publications to social media platforms through authorized users of Subscriber that draft and suggest social media posts (“Suggesters”) to social media publishers (“Publishers”) on Internet-connected mobile devices.
B. Subscriber desires to access the Platform, subject to the terms and conditions set forth herein.
NOW, THEREFORE, intending to be legally bound and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

SECTION 1. PLATFORM ACCESS; RESTRICTIONS.

(a) Access. Subject to the terms and conditions of this Agreement and the Socialie Terms of Use made available on the Platform, Socialie will provide Subscriber with access to and use of 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 as may be set forth in one or more mutually agreed purchase orders (each, a “PO”) or statements of work (each, an “SOW”). 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 or SOWs adding such seats.

(b) Restrictions. Subscriber agrees that it will not (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 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; (vii) remove, conceal or alter any personally identifiable information, identification, copyright or proprietary rights notices or labels from or on the Platform; or (viii) access or permit any third party to access (or attempt or permit any third party to attempt to access) any content or information (including, personally identifiable information) other than through the Platform using credentials provided by Socialie to Subscriber.

(c) User Access. Subscriber acknowledges and agrees that Subscriber’s authorized administrative user Suggesters and Publishers shall not be allowed to access or use the Platform unless and until they agree to abide by the Platform’s then-current Terms of Use. 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 Terms of Use.

(d) 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 7) 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.

SECTION 2. SERVICES.

(a) White Label Services. Socialie will provide services to create a Subscriber-branded version of the Platform accessible via a Socialie designated website hosted by Socialie (the “White Label Platform”).

(b) Support. In exchange for the support fees to be paid by Subscriber, Socialie shall provide telephone and e-mail support and customer service. Support includes problem solving, documentation clarification and technical guidance for the Platform. Support will not include services that require modification of code. Customer service includes support for Suggesters only. Subscriber will be responsible for providing support and guidance to Publishers regarding use of the Platform. Telephone and e-mail support and customer service will be available during the hours of 9:00 a.m. to 5:00 p.m. Eastern Time, Monday through Friday, exclusive of Socialie holidays. Socialie will provide Subscriber with updates and bug fixes it makes commercially available to its customer base as a whole.

(c) Statements of Work. Subscriber may request from time to time that Socialie provide certain professional services in addition to those included in Socialie’s standard set-up. Socialie will provide the professional services specifically described in written SOWs that reference this Agreement and are mutually agreed upon and signed by the parties. The parties shall work together in a joint effort to accomplish the tasks and objectives set forth in each SOW. Each party shall use its reasonable efforts to accomplish the tasks assigned to it in each SOW, and to cooperate with and support the other party’s performance of the tasks assigned to it, on a timely basis and in a professional manner, subject to receipt of all necessary and appropriate cooperation and support from the other party. Socialie shall be responsible for delivering and performing only those professional services specifically identified in each SOW.

SECTION 3. RESPONSIBILITIES OF SUBSCRIBER; PUBLISHERS.

(a) 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. Subscriber shall not access the Platform for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.

(b) 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 3 or objectionable; (iii) contain a virus or any other harmful component; (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.

SECTION 4. TERM; TERMINATION.

(a) Term. This Agreement shall commence as of the Effective Date and Term and shall remain in effect until the terms of all subscriptions provided under any PO or SOW have expired or have been terminated in accordance with this Agreement (the “Term”). Your subscription will automatically renew each month without notice until you cancel as provided in the PO. You authorize us to store your payment method(s) and to automatically charge your payment method(s) every month until you cancel. We will automatically charge you the rate from the current PO for your plan, plus applicable taxes (such as VAT or GST if the rate does not include it), every month upon renewal until you cancel.

(b) 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 Terms of Use, Socialie may terminate this Agreement immediately upon notice to Subscriber and/or suspend access to the Platform without terminating th is Agreement and without advance notice.

(c) Effect of Termination. Upon termination or expiration of this Agreement, the Subscriber shall immediately cease use of the Platform and shall return to Socialie all user manuals and other documentation in its pos session. Sections 1(b), 1(d), 4(c) and 6 through Section 12 shall survive the expiration or termination of this Agreement for any reason.

SECTION 5. FEES AND PAYMENT.

(a) 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 or SOW. The subscription fee for each Initial Subscription Term is due upon execution of the applicable PO or SOW. 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 or SOW.

(b) Services. For the professional services provided by Socialie pursuant to this Agreement, Subscriber shall pay the fees set f orth in the applicable SOW. Unless otherwise provided in a SOW, all such professional services shall be provided on a time and materials basis at Socialie’s then-current hourly rates and all amounts to be paid by Subscriber hereunder for such professional services are due and payable within thirty (30) days of the date of Socialie’s invoice therefor.

(c) Payment. All payments not made by Subscriber when due shall be subject to late charges of the lesser of (a) one and one-half percent (1.5%) per month of the overdue amount or (b) the maximum amount permitted under applicable law. Subscriber shall pay all sales, use and excise taxes relating to, or under, this Agreement, exclusive of taxes based on or measured by Socialie’s net income.

SECTION 6. CONFIDENTIALITY.

(a) Obligations. As used herein, “Confidential Information” means all data or information relating to the activities or business of a party that is disclosed by such Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as proprietary or confidential or that reasonably should be understood to be proprietary or confidential. 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 (i) to observe complete confidentiality with respect to the Confidential Information of th e Disclosing Party; (ii) not to disclose, or permit any third party to disclose, the Confidential Information of the Disclosing Party (or any portion thereof) without prior written consent of Disclosing Party; and (iii) to ensure that any employees or any third parties who receive access to the Confidential Information, are advised of the confidential and proprietary nature thereof and are prohibited from disclosing the Confidential Information or using the Confidential Information other than for the benefit of the Receiving Party, in accordance with this Agreement. It is expressly agreed by the Parties that Confidential Information of Socialie includes the Platform.

(b) Exclusions. The following shall not be deemed to be Confidential Information for purposes of this Agreement: (a) information already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) information generally known to the public other than as a result of disclosure in violation of this Section 6; (c) information lawfully obtained from any third party that has no duty or obligation of confidentiality with respect to such information; and (d) information developed by the Receiving Party independently and without reference to information provided by the Disclosing Party.

(c) Equitable Relief. Each Receiving Party acknowledges that the Confidential Information of the Disclosing Party is important, material and confidential, and gravely affects the successful conduct of the business of the Disclosing Party, and that any breach of this Section 6 shall constitute a material breach of this Agreement. The Parties recognize that a breach of Section 6 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.

SECTION 7. INTELLECTUAL PROPERTY RIGHTS.

(a) 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 i nterest 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 (a) trade secrets, know-how and other confidential or non-public business information; (b) original works of authorship and any moral rights relating thereto; (c) trademarks, service marks, trade dress and other indications of origin; and (d) patents, invention disclosures, inventions and discoveries.

(b) Deliverables. Subscriber and Socialie agree (i) that all deliverables and all other original material, including all computer programs and all related printed materials comprising the deliverables, 5 originated and prepared for Subscriber by Socialie pursuant to this Agreement, including any SOW, shall belong exclusively to and be the property of Socialie, (ii) that such deliverables shall not constitute a work-made-for-hire under the Copyright Act, and (iii) that Socialie shall have the exclusive right to protect the deliverables by patent, copyright, or any other means. Subscriber hereby assigns all of its right, title and interest, if any, in and to the deliverables to Socialie. Socialie agrees that upon receipt of payment in full of the fees associated with the deliverable specified in the applicable SOW, such deliverables may be accessed and used by Subscriber consistent with the rights granted in Section 1(a) of this Agreement.

(c) 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 during the Term solely in connection with the design, development and provision of the White Label Platform. Socialie will promptly discontinue the display or use of any of Subscriber’s trademarks, service marks, name and logos or change the manner in which a trademark, service mark, name or logo is displayed or used when requested by Subscriber.

SECTION 8. DISCLAIMER OF WARRANTY. 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. The foregoing provisions shall be enforceable to the maximum extent permitted by applicable law.

SECTION 9. LIMITATION OF LIABILITY; INDEMNIFICATION.

(a) 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.

(b) 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 employees 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.
SECTION 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 6 (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 12(b); ( c ) the prevailing Party shall be entitled to recover, in addition to any other amounts awarded, the full amount of such prevailing Party’s legal and other related fees, costs and expenses, including attorneys’ fees; ( d ) the costs of the arbitration (other than the Parties’ costs and expenses) will be allocated among the Parties in the discretion of the arbitrator; and ( e ) 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 intellectual property claim or any claim involving the breach of any confidentiality obligations under this Agreement in any court of competent jurisdiction.

SECTION 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.

SECTION 12. GENERAL.

(a) 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.

(b) 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.

(c) 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.

(d) 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.

(e) 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.

(f) 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, (iii) if to Socialie, by 7 email to kristin@socialie.com, or (iv) if to Subscriber, to the last known email address of the Subscriber. Either Party may change its address for notice by written notice to the other Party.

(g) Assignment of Agreement. Neither Party may sublicense, lease, assign or otherwise transfer, in whole or in part, thi s 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 purch aser 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; provided further that in the case of subclause (i), the assigning Party shall remain responsible for its obligations set forth in this Agreement, and, in the case of subclauses (ii) and (iii), the assigning Party shall make proper provision so that the successors and assigns shall assume the obligations set forth in th is Agreement. Any assignment or purported assignment made in violation of the foregoing provision shall be void ab initio.

(h) Counterparts. This Agreement 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, and in pleading or proving any provision of this Agreement, it shall be necessary to produce more than one such counterpart. The reproduction of signatures by means of facsimile device or other electronic means shall be treated as though such reproductions are executed originals.

(i) 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 a nd 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.

(j) Publicity Reference. Socialie may include the Subscriber in its general listing of Subscribers, 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.