Updated November 26, 2020
The following Terms of Service (collectively, the “Terms”) govern your access to and use of the Broadcast platform, websites, mobile applications and other online services (collectively, the “Services”).
Capitalized terms shall have the meanings provided in this section or as specified in the body of the Agreement.
“Agreement” means this Master Subscription and Services Agreement, and unless the context requires otherwise, includes all Order Forms, and any addendums, exhibits or attachments to any of the foregoing.
“API” means application programming interface.
“Audience Size” means the total number of Subscribers (as defined below).
“Customer Data” means all electronic data or information submitted by Customer to the Broadcast Platform.
“Disabling Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Documentation” means any proprietary information or documentation made available to Customer by Cerkl for use with the Broadcast Platform, including any documentation available online through the Broadcast Platform dashboard or otherwise.
“Order Form” means each Broadcast ordering document signed by duly authorized representatives of both Parties which references this Agreement, identifies the Services ordered by Customer from Cerkl, sets forth the prices for the Services, and contains other applicable information terms and conditions.
“Professional Services” means configuration, training and such other services as may be described in an Order Form.
“Broadcast Platform” means, collectively, the online, web-based applications and platform provided by Cerkl and ordered by Customer pursuant to this Agreement and as specified in one or more Order Form(s).
“Services” means, collectively, the provision of the Broadcast Platform and the Professional Services specified in one or more Order Form(s).
“Subscriber” means any Customer-defined recipient of Broadcast personalized content via email, website(s) and/or mobile apps.
“Term” means the time period for the provision of the Services, as specified in an Order Form. This Agreement will terminate as specified below.
“User” means an individual who is authorized by Customer to use the Broadcast Platform in accordance with the Agreement. The rights of any User to use the Broadcast Platform cannot be shared or used by more than one individual (unless such right is reassigned in its entirety to another authorized User).
2.1. Provision of Services. Cerkl will provide to Customer the Services pursuant to this Agreement and the relevant Order Form during the applicable Term. Services will be provided pursuant to this Agreement and the specifications set forth in the applicable Order Form, and substantially in accordance with the specifications set forth in the SLA.
3. RESPONSIBILITIES AND RESTRICTIONS
3.1 Cerkl Responsibilities. Cerkl will provide the Broadcast Platform to Customer during the Term in accordance with this Agreement.
3.2. Customer Responsibilities. Customer is responsible for all activity that occurs under Customer’s accounts by or on behalf of Customer. Customer agrees to(a) be solely responsible for all User activity, which must be in accordance with this Agreement and the Documentation, (b) be solely responsible for Customer Data (other than with respect to the Cerkl obligations set forth in the Agreement) (c) obtain and maintain during the Term all necessary consents, agreements and approvals from individuals or any other third parties for all actual or intended uses of information, data or other content Customer will use in connection with the Services, (d) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services and notify Cerkl promptly of any known unauthorized access or use, and (e) use the Services only in accordance with applicable laws and regulations.
3.3 Restrictions. Customer will not (a) use, or permit the use of, the Services except as expressly authorized under this Agreement or the Documentation, (b) interfere with or disrupt the integrity or performance of the Broadcast Platform or content contained therein, or (c) disrupt, disable, translate, decompile, or reverse engineer the Services, or (d) take any other action with respect to the Services not expressly permitted under this Agreement or the Documentation.
3.4 Privacy and Data Protection. In the event Customer or any Customer Data is sourced from the European Union (“EU”) or the Services otherwise involve special privacy or data protection provisions (whether applicable in the EU or otherwise), the parties may agree to a Data Processing Addendum with additional provisions relating to privacy and data protection, which shall be attached to this Agreement or Order Form and become a part of this Agreement.
4. FEES AND PAYMENT
4.1. Fees. Customer shall pay all fees specified in all Order Forms hereunder (“Fees”) for the Services. Customer shall also reimburse Cerkl for all reasonable travel and living expenses incurred in the performance of Professional Services, provided that any material expenses shall be subject to approval in advance by Customer. Except as otherwise specified herein or in an Order Form, (a) Fees will be quoted and paid in United States dollars and (b) payment obligations are non-cancelable and Fees paid are nonrefundable.
4.2. Invoicing and Payment. If a purchase order is required by Customer, Customer will provide Cerkl with a valid purchase order within five (5) days from the execution of the applicable Order Form. Any terms and conditions on any purchase order shall not be deemed a part of this Agreement or otherwise binding on Cerkl. Cerkl will invoice Customer in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, Fees are due net sixty (60) days from Customer’s receipt of the invoice. Customer is responsible for providing Cerkl with complete, accurate and up to date billing and contact information.
4.3. Overdue Fees. If any Fees are not received from Customer by the due date, then at Cerkl’s discretion, such Fees may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
4.4. Suspension of Services. Except with respect to any Fees disputed in good faith by Customer, if any Fees for the Broadcast Platform or Professional Services are sixty (60) or more days overdue, Cerkl may, without limiting Cerkl’s other rights and remedies, suspend Professional Services and Customer’s use of the Broadcast Platform until such amounts are paid in full.
4.5. Payment Disputes. If an invoiced amount is disputed in good faith by Customer, Customer must notify Cerkl in writing and provide sufficiently detailed support of any invoice dispute within ten (10) business days of Customer’s receipt of invoice. If Customer fails to do so, Customer is deemed to have waived its right to dispute that invoice and the invoice will be deemed accurate and valid. Nothing in this section shall be deemed to waive Customer’s obligation to pay any undisputed amounts in accordance with Section 5.2 (Invoicing and Payment).
4.6. Taxes. The Fees are exclusive of all taxes, levies, duties or similar governmental assessments of any nature (collectively, “Taxes“). Customer is responsible for paying all Taxes associated with Customer purchases hereunder except for those based on Cerkl’s net income, property, or employee withholdings. Taxes shall not be deducted from the payments to Cerkl, except as required by law, in which case the amount payable shall be increased as necessary, so that after making all required deductions and withholdings, Cerkl receives and retains (free from any Tax liability) an amount equal to the amount it would have received had no such deductions or withholdings been made.
4.7. Audit Rights. Cerkl shall have the right to audit Customer’s compliance with this Agreement at any time during the Term. Customer shall cooperate following any reasonable request by Cerkl in connection with such audit. If Cerkl determines that Customer has allowed access to the Services other than as permitted under this Agreement or any Order Form or has otherwise violated any applicable terms hereof or thereof, and as a result additional Fees are owed to Cerkl, Cerkl shall invoice Customer for such discrepancies and such Fees shall be payable pursuant to the terms of this Agreement. The results of any audit shall not limit any other rights or remedies of Cerkl.
4.8. Audience Size Increase. If the Audience Size as specified in the Order Form increases by more than 20% during the Term of Agreement as specified in the Order Form, a New Billing Rate will be calculated by increasing the prior Billing Rate by the pro-rata increase in audience size. A new Order Form and invoice will be issued for the difference.
5. PROPRIETARY RIGHTS
5.1. Cerkl Ownership. Subject to any rights expressly granted to Customer in the Agreement, Cerkl and its licensors, as applicable, reserve all right, title and interest in and to the Services, including information presented in any form and intellectual property rights (“Cerkl Intellectual Property”).
5.2. Customer Ownership and Licenses. As between Cerkl and Customer, Customer owns all rights, title and interest in and to (a) all Customer Data and (b) any information supplied by Customer to Cerkl as may be specified in any Order Form (collectively, “Customer Materials”). Customer grants Cerkl a non-exclusive, non-transferable, royalty free, non-sublicenseable (except as needed for the provision of Services or as set forth herein) worldwide right to access and use Customer Materials solely to provide the Services to Customer at Customer’s request. No other rights or implied licenses in Customer Materials are granted to Cerkl other than as expressly set forth herein.
5.3. Feedback and Derivative Works. Customer is not required to provide (a) any suggestions, enhancement requests, recommendations or other feedback (“Feedback”) or (b) any ideas, technology, developments, derivative works or other intellectual property (“Derivative Works”) related to the Services or any test features, services or products to which Customer is given access. If Customer does so, Customer grants Cerkl a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use, or incorporate into any of its services, any Feedback or Derivative Works. Customer may only create Derivative Works relating to the Services or any test features, services or products to which Customer is given access, with prior written consent from Cerkl.
6.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a Party (“Discloser“) to the other Party (“Recipient“), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer Confidential Information will include, but is not limited to, Customer Data; Cerkl Confidential Information includes, but is not limited to, the Broadcast Platform, information or technology used in connection with the Services, this Agreement and all Order Forms; and Confidential Information of each Discloser includes Discloser’s non-public business and marketing plans, technology and technical information, product plans and designs, and business processes. Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to Discloser, (b) was known to Recipient prior to its disclosure by Discloser without breach of any obligation owed to Discloser, (c) is received from a third party without any obligation of confidentiality, or (d) was independently developed by Recipient without reference to or use of Discloser’s Confidential Information.
6.2. Protection of Confidential Information. Except as otherwise permitted in writing by Discloser, Recipient will (a) 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 use Discloser’s Confidential Information only for purposes of this Agreement, and (b) Recipient will limit access to Confidential Information of Discloser to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have agreed to confidentiality obligations with Recipient that are no less stringent than those herein. In addition to the foregoing, Recipient may disclose Confidential Information in any due diligence of Recipient in connection with any corporate transaction, provided that such disclosure is made under a binding obligation of confidentiality with terms similar to those herein.
6.3. Protection of Customer Data. Without limiting the above, Cerkl will maintain commercially reasonable administrative, physical, and technical safeguards designed to protect the security and confidentiality of Customer Data. Except (a) in order to provide the Services, (b) to prevent or address service or technical problems in connection with support matters, or (c) as expressly permitted in writing by Customer, Cerkl will not modify Customer Data or disclose Customer Data (unless compelled by law in accordance with Section 6.4 (Compelled Disclosure).
6.4. Compelled Disclosure. Recipient may disclose Confidential Information of Discloser to the extent required or compelled by law to do so, provided Recipient gives Discloser prior notice of such compelled disclosure (unless notice is prohibited by law) and reasonable assistance, at Discloser’s cost, if Discloser wishes to contest the disclosure. If Recipient is compelled by law to disclose Discloser’s Confidential Information as part of a civil proceeding, and Discloser is not contesting the disclosure, Discloser will reimburse Recipient for its reasonable cost of compiling and providing secure access to such Confidential Information.
7. WARRANTIES AND DISCLAIMERS
7.1. Cerkl Warranties. Cerkl warrants that (a) the Broadcast Platform will perform substantially in accordance with the Documentation (demonstrations/videos/website/materials) made available to Customer, (b) the functionality of the Broadcast Platform will not be materially decreased during the Term and (c) the Professional Services will be performed in a professional and workmanlike manner. For any breach of the foregoing warranties, Customer’s exclusive remedy will be as provided in Section 10.3 (Termination for Cause) and Section 10.5 (Refund or Payment upon Termination).
7.2. Mutual Warranties. Each Party represents and warrants that (a) it has the legal power to enter into this Agreement, (b) it will use commercially reasonable efforts through the use of anti-virus protection not to transmit to the other Party any Disabling Code, and (c) it will comply with all applicable laws with respect to its rights and obligations pursuant to this Agreement.
7.3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, CERKL MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
IN ADDITION, CUSTOMER ACKNOWLEDGES THAT SERVICE FEATURES THAT INTEROPERATE WITH SOCIAL MEDIA NETWORKS DEPEND ON THE CONTINUING AVAILABILITY OF THOSE SOCIAL MEDIA NETWORKS’ API AND PROGRAM FOR USE WITH THE BROADCAST PLATFORM. SERVICES MAY BE IMPACTED, INTERRUPTED OR MAY CEASE IF ANY SOCIAL MEDIA NETWORK CEASES TO MAKE ITS API OR PROGRAM AVAILABLE AT ALL OR ON REASONABLE TERMS OR IF ANY SOCIAL MEDIA NETWORK EXPERIENCES AN OUTAGE, ANY MALFUNCTIONS OR ANY CHANGE IN THEIR SERVICES, PRACTICES OR FUNCTIONALITY.
8.1. Indemnification by Cerkl. Cerkl will defend, indemnify and hold harmless Customer against any claim, demand, suit, or proceeding (“Claim”) made or brought against Customer by a third party alleging that the provision of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party; provided that Customer (a) promptly gives Cerkl written notice of the Claim; (b) gives Cerkl sole control of the defense and settlement of the Claim (provided that Cerkl may not settle any Claim without Customer’s written approval, which will not be unreasonably withheld or delayed, unless the settlement unconditionally releases Customer of all liability); and (c) provides to Cerkl all reasonable assistance, at Cerkl’s expense. Cerkl has no obligation to indemnify a Claim if it arises from: (i) Customer Data or Customer Materials; or (ii) unauthorized modification or use of the Services; or otherwise relating to Customer’s acts or omissions not in accordance with, or in breach of, the terms of this Agreement.
8.2. Indemnification by Customer. Customer will defend, indemnify and hold harmless Cerkl against any Claim made or brought against Cerkl by a third party (a) relating to or arising from Customer’s use of the Services in violation of this Agreement, or (b) relating to or arising from Cerkl’s permitted use of Customer Data, Customer Materials, or Customer’s breach of any Cerkl Terms of Service or any other terms and conditions of a third party agreed to by Customer in connection with, or relating to, the Services; provided that Cerkl (i) promptly gives Customer written notice of the Claim; (ii) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim without Cerkl’s written approval, which will not be unreasonably withheld or delayed, unless the settlement unconditionally releases Cerkl of all liability); and (iii) provides to Customer all reasonable assistance, at Customer’s expense.
8.3. Exclusive Remedy. This Section 8 (Indemnification) states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any type of Claim described in this Section.
9. LIMITATION OF LIABILITY
9.1. Limitation of Liability. EXCEPT FOR (A) DAMAGES ARISING FROM A BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS OR (B) A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. THE FOREGOING WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT.
9.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING WILL NOT APPLY (A) TO A VIOLATION OF CONFIDENTIALITY OBLIGATIONS OR (B) TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10. TERM AND TERMINATION
10.1. Term of Agreement. This Agreement commences on the Effective Date and will remain in effect until the earlier of (a) the expiration or termination of all Order Forms under this Agreement or (b) the termination of this Agreement in accordance with this Section. Upon termination of this Agreement for any reason, all rights and subscriptions granted to Customer including all Order Forms will immediately terminate and Customer will cease using the Services. For avoidance of doubt, upon termination of any Order Form, the Services provided pursuant to such Order form shall cease and Customer shall stop using such Services.
10.2. Automatic Renewal. Subscriptions for the Broadcast Platform commence on the Order Date specified in the applicable Order Form and continue for the subscription Term specified therein, unless otherwise terminated. Except as otherwise specified herein or in the applicable Order Form, all subscriptions will automatically renew for additional periods of one year (each a “Renewal Term”) at the list price in effect at the time of renewal unless either Party gives the other Party written notice of non-renewal at least 60 days prior to the end of the applicable Term or Renewal Term.
10.3. Termination for Cause. A Party may terminate this Agreement or any applicable Order Form for cause: (a) upon 30 days’ written notice to the other Party of a material breach (including details sufficient to identify the material breach) if such breach remains uncured at the expiration of such period, (b) immediately for material violations of confidentiality obligations, or (c) 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.
10.4. Survival. Any provision of this Agreement that expressly or by implication is intended to survive termination, regardless of the date, cause or manner of such termination, and including but not limited to rights of action accruing prior to termination and payment obligations, will survive such termination and will continue in full force and effect.
10.5. Refund or Payment upon Termination. Upon any termination for cause by Customer, Cerkl will refund Customer a pro-rata portion of any prepaid Broadcast Platform Fees that cover the remainder of the Term after the effective date of termination and a pro-rata portion of any prepaid Professional Services Fees that cover Professional Services that have not been delivered as of the effective date of termination. Upon any termination for cause by Cerkl, Customer will pay any unpaid Fees covering the remainder of the Term of all subscriptions under the applicable Order Forms after the effective date of termination and for any Professional Services provided up to the date of termination. In no event will any termination relieve Customer of the obligation to pay any Fees payable to Cerkl for the period prior to the effective date of termination.
10.6. Downloading of Customer Data. During any Term under an Order Form and for the period 30 days after termination or expiration of the Agreement or the applicable Order Form, Customer may download Customer Data used in connection with such Order Form using the tools of the Broadcast Platform as well as the Cerkl Broadcast API. After expiration of the 30-day period, Cerkl will have no obligation to maintain or make available the applicable Customer Data and will thereafter, unless legally prohibited, delete or make permanently unreadable all Customer Data in Cerkl systems or otherwise in Cerkl possession or under Cerkl control.
11. DISPUTE RESOLUTION, GOVERNING LAW & NOTICES
11.1 Dispute Resolution, Governing Law. The Parties will use reasonable efforts to resolve any dispute between them in good faith prior to initiating legal action. Any claim or cause of action under or relating to this Agreement will be brought in the state or federal courts located in Cincinnati, Ohio and the Parties agree to submit to the exclusive personal jurisdiction of such courts. This Agreement will be governed by the laws of the State of Ohio, excluding choice of law principles. Notwithstanding the above, for Customers headquartered in the European Union Economic Area, as set forth in the Order Form, claims or causes of action relating to this Agreement will be brought in the courts of England and Wales and the Parties agree to submit to the exclusive personal jurisdiction of such courts. For such Customers, this Agreement will be governed by the English law, excluding choice of law principles.
11.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder will be in writing and will be deemed to have been given upon: (a) delivery by traceable courier, (b) upon delivery via mailing (confirmed receipt signature/return receipt requested), (c) the second business day after sending by confirmed facsimile, or (d) via email with receipt confirmed via reply from receiving Party. Notices to Cerkl will be addressed to the CFO with a copy to the CEO at 4424 Carver Woods Drive, Suite 103, Cincinnati, Ohio 45242, or in the case of Customer, sent to the address and contact set forth on the Order Form, or as designated from time to time in writing by the Parties. Billing-related notices will be addressed to the relevant billing contact designated by Customer on the Order Form.
11.3. Waiver of Jury Trial. Each Party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
12. GENERAL PROVISIONS
12.1. No Dependence on Future Functionality. Customer agrees that Customer is not entering into this Agreement or any Order Form contingent on the provision of any future functionality relating in any way to the Services unless expressly provided in any Order Form and no statement or other information made or provided orally or otherwise shall be binding unless specifically set forth in an Order Form.
12.2 Export Compliance. Each Party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports or otherwise restricted from doing business with any U.S. company, and Customer will not access or use the Services in violation of any U.S. or international export embargo, prohibition or restriction.
12.3 Force Majeure. Neither Party will be in default for failing to perform any obligation hereunder, if such failure is caused solely by supervening conditions beyond the failing Party’s reasonable control, including without limitation acts of God, civil commotion, strikes, terrorism, failure of third-party networks or services or the public Internet, power outages, labor disputes or governmental demands or restrictions.
12.4. Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
12.5. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement, unless expressly stated otherwise.
12.6. Waiver and Cumulative Remedies. No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
12.7. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
12.8. Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld or delayed). Notwithstanding the foregoing, either Party may assign this Agreement in its entirety (including all Order Forms), without consent of the other Party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. This Agreement will bind and inure to the benefit of the Parties, their respective successors and permitted assigns.