SocialPiper Terms of Service

Last Modified: July 31, 2020

Please review these Terms of Service (this “Agreement”) carefully as well as our Privacy Policy available at https://www.socialpiper.com/privacy. Wherever used in this Agreement, “you,” “your,” “Customer,” and similar terms mean the person or legal entity accessing or using the Services. For the avoidance of doubt, if you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, “you,” “your” or “Customer” means the company or other legal entity that you are using the Services on behalf of.

By purchasing, accessing or using the Services offered by SocialPiper Inc. (“SocialPiper,” “we” or “us”), you are confirming that you have read, understand and accept this Agreement. This Agreement can be updated from time to time in accordance with Section 10.5 below. You are responsible for regularly reviewing the most current version of this Agreement, which is published at: https://www.socialpiper.com/terms. When we change this Agreement, we will update the “Last Modified” date above.

By purchasing, accessing or using the Services, you confirm that:

    A. You will only use our Services for business and professional reasons (the Services are not for use by consumers and may only be used for business and professional purposes);

    B. You accept and will comply with this Agreement; and

    C. You are responsible for anyone that uses our Services through your account (“Authorized Users”), which may include your employees, consultants or contractors, or the employees, consultants or contractors and those of your “Affiliates,” which are companies or entities that you own, that own you, or that have the same owner or corporate parent as you. If you are a marketing agency or similar organization and provide access to our Services to any of your clients or their employees, they are also your Authorized Users.

    1. Terminology.

        (a) We use capitalization for terms that have a special meaning in this Agreement. While some terms are defined elsewhere, this section sets out the definitions of some key terms.

“Ads Budget” means the budget set by you on the Website, which is solely a guide established by you for your spending on Third-Party Services, which such spending shall be paid directly by you, and not us, to any such third party.

“Ads Content” is Customer Content that you or your Authorized Users develop or provide in connection with your creation, posting, or management of paid advertisements on Facebook, Instagram, or any other applicable Social Network.

“Ads Spend Fee” is an amount owed to us monthly (or such other period indicated in the Confirmed Order) that is equal to a certain percentage of your total purchases on Advertising Platforms, that we charge you. The percentage is set forth in the Confirmed Order.

A “Confirmed Order” is a document or receipt that we issue with respect to your purchase of Services and that is signed or otherwise agreed to by you, which describes the Services you are purchasing, including the fees, the subscription and/or quantities purchased, and any other details specifically related to those services.

“Content” is a generic term that means all information and data (such as text, images, photos, videos, audio and documents) in any format that is uploaded to, downloaded from or appears on our Services.

“Customer Content” is Content that you or your Authorized Users provide to us or upload to our Services.

“Developed Content” is Content that you or your Authorized Users develop using the Services and/or on the Website.

“Fees” are, collectively, all amounts you owe to us relating to the Services, including the monthly or annual subscription fees and the then-due Ads Spend Fees, and any other fees that may be agreed between us in a Confirmed Order from time to time.

“Mentions” are the Content that a third party (in other words, someone other than you, an Authorized User or SocialPiper) creates and that we obtain on your behalf and at your instruction from Social Networks or other Third-Party Services that you connect to our Services. For example, comments created by followers that appear on your Facebook page would be considered Mentions.

“Services” means services included in SocialPiper’s plans and any other SocialPiper products or services made available to you through a Confirmed Order, but does not include any Third-Party Services.

“Third-Party Services” are services that are not provided by SocialPiper that you may access or use in connection with our Services. They include the “Social Networks,” which are the social networking sites supported by our Services (such as Facebook and Instagram and others that may from time to time be added), as well as any extensions and/or applications that may be made available by SocialPiper from time to time.

“Website” means the website www.SocialPiper.com together with related webpages.

        (b) Headings used in this Agreement are for convenience of reference only and do not affect the construction or interpretation of this Agreement.

    2. SocialPiper’s Services.

    2.1 Services. During the Term, subject to the terms and conditions of this Agreement, we will: (a) make the Services available to you in accordance with the applicable Confirmed Order; and (b) host and serve the Services in accordance with this Agreement.

    2.2 Advertising Terms. The following terms apply to and govern your use of the Services to create and manage Ads Content on any Social Network, whereby you create and manage paid content on our Website or on Social Networks in conjunction with our Services, or any other third party advertising platforms that we offer access to (collectively, “Advertising Platforms”):

   (a) Advertising Platform Accounts. Our Website provides you with technical functionality which allows you to publish and manage ads on Advertising Platforms, including Facebook and Instagram and others that we may add from time to time in our discretion. In order to use this functionality, you must have an advertising account with the relevant Advertising Platform. You agree to pay us the Ads Spend Fees associated with your advertising on Advertising Platforms using our Services or accessed through our Website. You also agree that we may receive payments from any Advertising Platform based on your ad spend, pursuant to our agreements with the Advertising Platforms, and that in such case, such payments to us from any Advertising Platform(s) will not offset or affect any Fees that you owe to us.

   (b) Payments to the Advertising Platform. In addition to the payment of your Fees to SocialPiper, you will be responsible at all times for the cost of ads purchased from any and all Advertising Platforms from which you elect to purchase ads. While we provide a utility feature to track your Ads Budget and provide you information as to your total spend, it is solely your responsibility to monitor and pay for your total advertising costs in accordance with your agreement with each respective Advertising Platform. In the event of a technical, payment or other error in which we allow you to spend more than you have established in your Ads Budget, you will be fully responsible for the costs relating to your ads, including any amounts you owe directly to any Advertising Platform and the Ads Spend Fees owed to us for such additional purchases on the Advertising Platform(s). We may charge you upon discovery of any non-payment or overage to cover any of our Fees and any related expenses. In addition, we reserve the right to revoke your access to ad generation and posting if you fail to pay for the Services or any Fees.

  (c) Customer Responsibility. You will not provide us with any Ads Content that contains any personally-identifiable information or that violates any agreement or undertaking you have with any Social Network. You agree to abide by all agreements you have made to and with Social Networks with respect to the Advertising Platforms and as a general user thereof, including complying with all terms of use/service, privacy policies and other stated requirements.

    1. Free Trial and other Promotions.
      1. SocialPiper may from time to time grant you and your Authorized Users access to the Services at no cost for a defined period of time (“Free Trial”). Either you or we may suspend, limit or terminate the Free Trial for any reason at any time without notice. Any information or data entered into the Free Trial services may be permanently lost at the termination of the Free Trial unless you purchase a subscription to the Services or export the information or data before the Free Trial. If you participate in the Free Trial, this Agreement together with any terms published to govern such Free Trial at such time shall apply to and govern those Free Trial.
      2. From time to time, we may offer you promotional or referral programs (“Promotions”). Participation in the Promotions is optional. If participate in any Promotion, this Agreement together with any terms published to govern such Promotion at such time shall apply to and govern any such Promotion.

  2.4 Beta Testing. From time to time, we may offer you the opportunity to install, use and test certain SocialPiper services prior to their commercial release (“Beta Services”). Use of the Beta Services is optional. If you use any Beta Services, this Agreement together with any terms published to govern such Beta Services at such time shall apply to and govern those Beta Services.

    2.5 Updates. Our Services evolve frequently. So long as we do not breach the warranty set out in      Section 9.2(a), we may change our Services (such as by changing, adding or removing features or Social Networks) at any time, for any reason, and may or may not provide notice of those changes to you.

    2.6 Social Networks. Our Services interact with Social Networks and depend on the availability of those Social Networks and the features and functionality they make available to us, which we do not control and may change without notice. If at any time a Social Network stops making some or all of its features or functionality available to us, or available to us on reasonable terms as determined by SocialPiper in its sole discretion (each an “API Change”), we may stop providing access to those features or functionality (or such features or functionality may be temporarily unavailable), and we will not be liable to you or any third party for any such change (or unavailability).

    3. Your Responsibilities.

    3.1 Acceptable Use. You and your Authorized Users must comply with the Use Standards set forth in Section 3.2 and all applicable laws. If you or any of your Authorized Users do not comply with the Use Standards or any applicable laws, we may remove any of your Content and temporarily suspend or restrict your access to the Services without prior notice. In such case, we will then notify you and, where applicable, will work with you in good faith to resolve the issue. If the matter is not resolved to our satisfaction, we may, in our sole discretion, terminate permanently your access to the Services.

3.2 Use Standards. You agree that the safety and well-being of others is essential and as such you will not engage in any unreasonable, unprofessional or unlawful behavior and you agree that you will not allow any of your Authorized Users or anyone else on your behalf to do so, including but not limited to the following:   

  1. You may not use our Services to do or share anything:
    • That violates these Terms of Service, our Privacy Policy or any terms and policies that apply to your use of Facebook, Instagram or any other Social Network.
    • That is unlawful, misleading, discriminatory or fraudulent.
    • That infringes or violates someone else’s rights, including their intellectual property rights.
  1. You may not upload viruses or malicious code or do anything that could disable, overburden, or impair the proper working or appearance of our Website or Services.
  2. You may not access or collect data from our Services using automated means (without our prior permission) or attempt to access data or Serrvices you do not have permission to access.
  3. You may not use Services for any illegal purpose, or in violation of any local, state, national, or international law.
  4. You may not use Services to violate, or encourage others to violate, the rights of third parties, including by infringing or misappropriating third party intellectual property rights.
  5. You may not use any Services available to, or use any Services for the benefit of, anyone other than the you.
  6. You may not sell, resell, license, sublicense, distribute, rent or lease any Services, or include any Service in an outsourcing offering.
  7. You may not use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material or to post, upload, or distribute any content that is unlawful, defamatory, libelous, untrue, or that any reasonable person might deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
  8. Infringe on the rights of any other party.
  9. Nothing in this Agreement will be construed to grant you any right to market or commercially exploit the Services or use the Services for the benefit of any parties other than you.
  10. You may not use any Services in order to build a competitive product or service, or allow access to any Service by an individual or entity where such access could reasonably be expected to be used to the competitive disadvantage of SocialPiper.
  11. You may not reverse engineer any Services (to the extent such restriction is permitted by law.
  12. You may not use our Services to disable any licensing or control features associated with our Services.
  13. You may not  use our Services to make or prepare any derivative work using content associated with the Services, other than as expressly permitted by this Agreement.
  14. You may not use or assist any party in using any information, material or know-how obtained through the use of the Services to supply products, content or Services to compete with the products or Services offered by SocialPiper.
  15. Interfere with or disrupt the integrity or performance of any Services or third-party data contained therein or linked Social Networks or other websites.

    3.3 Responsibility for Content. You are solely responsible for Customer Content and the Developed Content. We may, but do not have to, review, filter, block or remove Content, including Customer Content (or content developed by any other customer or user).

   3.4 Account Information. You are responsible for the completeness, security, confidentiality and accuracy of the account information you provide to us. You will promptly notify us of any unauthorized access to or use of your log-in credentials or account.

    3.5 Affiliates. Your Affiliates may use the Services that you purchase, subject to the quantities or other usage limits set out in your Confirmed Order. If an Affiliate wishes to have a separate account or wishes to be billed separately for its use of the Services, that Affiliate will need to obtain a separate Confirmed Order, which will form a separate contract between SocialPiper and that Affiliate, which will also be subject to this Agreement.

    3.6 Agency. If you act as a legal agent purchasing the Services on behalf of an end-user client (the “Principal”), then (a) the Principal must be identified as the end user on the applicable Confirmed Order; (b) you represent and warrant to us that you have obtained all necessary authorizations, consents, and licenses from the Principal to bind the Principal to this Agreement (including each applicable Confirmed Order) and to act as the Principal’s agent, and all of your actions related to this Agreement are within the scope of your agency with the Principal; and (c) you will defend, indemnify, and hold harmless SocialPiper from all damages, liabilities, costs, and expenses (including reasonable legal fees) arising from any breach of the foregoing representation and warranty.

    4. Content & Third-Party Services.

    4.1 Third-Party Content. We are not responsible for Content provided by others, including Mentions and Content from Third-Party Services (such as Content from Social Networks). You and anyone else who accesses our Services may access Content that might be unlawful, offensive, harmful, inaccurate or otherwise inappropriate. We will not be liable to you or any third party for Content provided by others.

    4.2 Third-Party Services. If you access or purchase a Third-Party Service, you do so at your own risk. Your relationship with the Third-Party Service provider is an agreement between you and them. If you access or enable a Third-Party Service, you grant them permission to access or otherwise process your data as required for the operation of the Third-Party Services. We will not be liable for disclosure, use, changes to, or deletion of your data or for losses or damages you may suffer from access to your data by a Third-Party Service. We make no representation and will have no liability or obligation whatsoever in relation to the content or use of, or correspondence, agreements or transactions with, any Third-Party Services, other than any specific agreement we have made with Third-Party Services which shall be for its/our benefit and not yours. You must comply with all agreements and other legal requirements that apply to Third-Party Services.

    5. Intellectual Property.

    5.1 Services. We keep all rights and interests in our Services. The Services contain Content owned or licensed by SocialPiper (“SocialPiper Content”). SocialPiper Content is protected by copyright, trademark, patent, trade secret and other laws, and, as between you and SocialPiper, we own and retain all rights in the SocialPiper Content.

    5.2 Feedback. We welcome your suggestions, comments, bug reports, feature requests or other feedback (“Feedback”). We do not have to keep Feedback confidential, even if you tell us it is confidential, provided we do not disclose that you are the source of any Feedback. If you provide Feedback, you grant SocialPiper a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use the Feedback for any purpose.

    5.3 Customer Content. You retain your rights to any Customer Content you submit, post or display on or through the Services. You grant us a non-exclusive, worldwide, sublicensable, royalty-free license to use, host, run, copy, reproduce, process, adapt, translate, publish, transmit, display and distribute your Customer Content for the purposes of providing and supporting the Services. We may also use aggregated information derived in part from your Customer Content and your use of the Services for the purposes of enhancing and developing our products and services.

5.4 Developed Content. We, or our third-party vendors as applicable, retain rights to any and all Developed Content developed on the Website or through the Services. We grant you a non-exclusive, worldwide, sublicensable, royalty-free license to use, host, run, copy, reproduce, process, adapt, translate, publish, transmit, display and distribute your Developed Content.

    6. Term and Termination.

    6.1 Term of Agreement. This Agreement will commence on the first day of the initial term set forth on the date of your first Confirmed Order (or such date indicated therein) and will continue in effect until the earlier of: (a) the expiration of all Confirmed Orders applicable to you (including any renewal periods unless notice of non-renewal is provided as set out in Section 6.2); and (b) the termination of this Agreement in accordance with its terms (the “Term”).

    6.2 Term of Confirmed Orders. The term of each Confirmed Order will start on the first day of the initial term specified on the Confirmed Order, and will continue for the specified term. Except as expressly stated otherwise in an Confirmed Order, all Confirmed Order will automatically renew for subsequent renewal periods (one month at a time for monthly subscriptions and an additional year renewal for each annual subscription) unless and until you deactivate your account and cancel the payment prior to the end of the then-current term. SocialPiper reserves the right to increase the Fees for Services on renewal by providing Customer written notice thereof (which notice may be provided by email) at least thirty (30) days prior to the end of the then-current term.

    6.3 Termination for Cause. A party may terminate this Agreement for cause (a) immediately if the other party has failed to cure a material breach within thirty (30) days after receiving written notice of that material breach from the other party; (b) in the event that your access to a Third-Party Service is terminated for cause by such third party; or (c) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.

    6.4 Effects of Termination. Upon termination of this Agreement for any reason: (a) all Confirmed Orders will automatically terminate; (b) your access to SocialPiper accounts and Services will be terminated and you will immediately cease all use thereof; and (c) you will pay all unpaid amounts you owe to SocialPiper including for the remainder of the subscription term and any Ads Spend Fees outstanding or to be billed. If you terminate this Agreement in accordance with Section 6.3(a) or (c), SocialPiper will refund any Fees you paid in advance for the Services applicable to the period after termination. If SocialPiper terminates this Agreement in accordance with Section 6.3, then you will pay any unpaid Fees for the remainder of the subscription term of any Confirmed Order(s). In no event will termination of this Agreement relieve you of your obligation to pay any amounts payable to SocialPiper for the period prior to the date of termination.

    6.5 Survival. Any provision of this Agreement that, either by its terms or to give effect to its meaning, must survive and such other provisions that expressly or by their nature are intended to survive termination will survive the expiration or termination of this Agreement. Without limiting the foregoing, Sections 5, 8, and 9 will survive the expiration or termination of this Agreement.

    7. Fees and Payment. The following terms apply to any purchase of Services or other products or services hereunder:

  1. Fees. You will pay all Fees as and when due to us as described in the Confirmed Order(s).
  2. Payment. You must provide us with a valid credit card or debit card. We will automatically charge you based on your chosen subscription term plan and schedule (monthly or yearly as indicated in the respective Confirmed Order). We will share your account information with financial institutions and payment processing companies, including your submitted payment information, to process your purchases.
  3. Terms; Prices; Payment Methods. Subscription to our plans are for fixed terms, and the associated fees payable for Services are non-refundable, except in the limited circumstances described in Section 6.4. Prices for Services are subject to change on 30 days’ notice, provided that no price change will apply during your then-current subscription term (monthly or annual as applicable). Depending on where you live, foreign exchange fees or differences in prices may apply, including because of exchange rates. We do not support all payment methods, currencies or locations for payment. If the payment method you use is no longer valid (such as a credit card that has expired) and you do not edit your payment information or, you authorize us to keep billing you for our Services and you remain responsible for uncollected amounts.
  4. Invoicing. We will initiate automatic charges or debits using the payment method(s) you have registered with us as and when invoices are due. Your Confirmed Order will set forth the schedule for billing of subscription fees and Ads Spend Fees and the currency of payment. Unless otherwise stated on the Confirmed Order, all undisputed invoices are payable upon our issuance of an invoice to you. Any disputed amounts will not affect payment of non-disputed amounts. The current invoice will be available under your account settings on the Website and receipts issued via email and also available in your account. If you would like copies of prior invoices, please email us at support@socialpiper.com. We are under no obligation to send you notice of issued invoices.
  1. Late Payment. If any undisputed amounts invoiced are not received by SocialPiper by the due date, then, at our discretion, such charges may accrue late interest at the lower of: (a) the rate of 18% per year; or (b) the maximum rate permitted by law from the date such payment was due until the date paid. In addition, upon five (5) days’ written notice to you provided after the due date of any undisputed amount, we may suspend your access to the Services if we have not received the amounts invoiced in full.
  2. Taxes. You are responsible for paying all taxes, assessments, charges, fees, and levies that may be levied on or applicable to the sale or license of goods or services, as the case may be, including all sales, use, goods and services, value added, and excise taxes, customs duties, and assessments, together with any installments and any interest, fines, and penalties with respect thereto, imposed by any governmental authority, including federal, state, provincial, municipal, and foreign governmental authorities (collectively, “Taxes”) associated with your subscription to the Services, which for clarity does not include any taxes based on SocialPiper’s income. If we have the legal obligation to pay or collect Taxes for which you are responsible under this Section 7.1(f), the appropriate amount will be invoiced to and paid by you, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority (acceptable to such taxing authority). Any and all payments by or on account of the compensation payable under this Agreement will 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 will be increased as necessary so that, after making all required deductions and withholdings, we receive an amount equal to the sum we would have received had no such deduction or withholding been made.
  3. Unpaid Fees. If you owe us any unpaid fees, we may suspend your access to our Website and the Services without prior notice until you pay us in full. Your obligation to pay Fees continues through to the end of the period (monthly or annual term, as set forth in the respective Confirmed Order) in which you cancel your plan.

    8. Confidentiality, Security & Data Protection.

    8.1 Confidential Information. SocialPiper and you may exchange “Confidential Information” in the course of your negotiation and use of our Services. SocialPiper’s Confidential Information may include non-public information about our pricing, personnel, or partnerships, our product roadmap, our security documentation, or other non-public information we identify as confidential. Your Confidential Information may include non-public information about your policies (such as your policies for internal review or approval of Customer Content), personnel (including names and email addresses of your Authorized Users), or plans or strategies (such as marketing plans or social strategies you share with SocialPiper in the course of our delivery of Services), but does not include any Content published, communicated, or transmitted to or through a Social Network account. When either you or we (the “recipient”) receive Confidential Information from the other (the “discloser”), the recipient will use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care) and will not disclose or use any Confidential Information of the discloser for any purpose outside of the scope of this Agreement. Information will not be considered Confidential Information if (i) it was lawfully in the recipient’s possession before receiving it from the discloser; (ii) it is provided in good faith to the recipient by a third party without breaching any rights of the discloser or any other party; (iii) it is or becomes generally available to, or accessible by, the public through no fault of the recipient; or (iv) it was or is independently developed by the recipient without reference to the discloser’s Confidential Information. In the event that the recipient or any representative of the recipient becomes legally compelled (by law, rule, regulation, subpoena, or similar court process) to disclose any of the Confidential Information, the recipient will (if permitted to do so) provide the discloser with notice of such circumstances and will limit such disclosure to the required disclosure. Further, you acknowledge that we may be required by agreements we enter into with Social Networks, or other vendors we engage, to grant them, or their Affiliates (or either of their or their Affiliates’ owners, directors, officers, agents, advisors, contractors, partners, licensors, licensees and employees) access to your Confidential Information from time to time which could be pursuant to our rendering the Services to you, an inquiry from a Social Network or other vendor, an audit or otherwise, and you agree that, in any such case, our compliance with such effort, inquiry or audit shall not be a violation of our confidentiality undertakings.

    8.2  Security Standards. During the Term, we will use commercially reasonable efforts to maintain security standards that are appropriate in our reasonable discretion and comply with applicable law (the “ Security Standards”). We take the responsibility of protecting your personal information seriously.  We use physical, technical and procedural safeguards to comply with applicable standards to secure your information from unauthorized access, use, and alteration.  Please refer to our Policy Privacy.

     8.3 Personal Information. If your use of the Services includes the collection or processing of Content that contains personal information that is subject to the      General Data Protection Regulation (EU) 2016/679, you may enter into a Data Processing Addendum (“DPA”) with SocialPiper; to do so, please email us at support@socialpiper.com in advance of providing, uploading or incorporating on the Website or in the Services any personal information subject to GDPR. If you sign a DPA, it will apply to that processing of personal information and be part of this Agreement. Please review our Privacy Policy for more information on how we collect and use information relating to the use and performance of our Services.

    9. Warranties, Indemnities & Limitations of Liability.

WARRANTIES & DISCLAIMER

    9.1 Mutual Warranties. Each of SocialPiper and Customer represents and warrants that (a) it has the power and authority to enter into this Agreement and to perform its obligations and duties under this Agreement; and (b) it will perform its obligations and duties and exercise its rights under this Agreement in compliance with all laws applicable to it.

    9.2 SocialPiper Warranties. SocialPiper warrants that: (a) subject to an API Change and subject to occasional downtime to address security threats, routine maintenance or other technical issues, the functionality of the Services will not be materially decreased during the term of the applicable Confirmed Order; and (b) to its knowledge, the Services do not contain any malicious code or viruses.

   9.3 Disclaimer.     (a) EXCEPT AS EXPRESSLY PROVIDED HEREIN, WE OFFER OUR SERVICES “AS IS” AND ARE NOT MAKING, AND TO THE GREATEST EXTENT PERMITTED BY LAW EXPRESSLY DISCLAIM, (1) ANY WARRANTIES, REPRESENTATIONS OR GUARANTEES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ALL EXPRESS OR IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY AND NON-INFRINGEMENT, (2) THAT OUR SERVICES WILL MEET YOUR REQUIREMENTS, OR (3) THAT OUR SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE OR ERROR-FREE. USE OF OUR SERVICES IS AT YOUR OWN RISK.

        (b) UNDER NO CIRCUMSTANCES WILL WE BE LIABLE FOR ANY THIRD-PARTY SERVICES, INCLUDING THE FAILURE OF ANY SUCH THIRD-PARTY SERVICES, THE TERMINATION OR BREACH OF AGREEMENTS BETWEEN YOU AND SUCH THIRD PARTIES, OR ACTIVITIES OF THIRD PARTIES, OR ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET, INCLUDING BUT NOT LIMITED TO POSTINGS OR OTHER ACTIVITIES BY, FROM OR ASSOCIATED WITH YOUR ACCOUNT(S) ON SOCIAL NETWORKS.

        (c) WE ARE NOT RESPONSIBLE FOR AND WILL NOT BE LIABLE FOR THE CONTENT MADE AVAILABLE THROUGH THE SERVICES, INCLUDING CUSTOMER CONTENT, DEVELOPED CONTENT, MENTIONS, AND ANY CONTENT OR SERVICES PROVIDED BY THIRD PARTIES. SOCIALPIPER DOES NOT CONTROL OR VET CONTENT AND IS NOT RESPONSIBLE FOR WHAT USERS POST, TRANSMIT, OR SHARE ON OR THROUGH THE SERVICES.

        (d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT.

(e) WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTIES OR REPRESENTATIONS (A) THAT THE WEBSITE OR THE SERVICES WILL MEET YOUR REQUIREMENTS, (B) THAT THE WEBSITE OR THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE OR THE SERVICES WILL BE EFFECTIVE, ACCURATE OR RELIABLE, (D) THAT THE SERVICES WILL BE PERMITTED IN YOUR JURISDICTION,                     (E) REGARDING ANY CONTENT TRANSMITTED TO THE WEBSITE OR THE SERVICES,               (F) REGARDING ANY CONTENT POSTED ON THE WEBSITE, (G) REGARDING ANY THIRD PARTY’S USE OF CONTENT TRANSMITTED BY YOU TO THE WEBSITE OR THE SERVICES, (H) THAT ANY CONTENT YOU TRANSMIT TO THE WEBSITE OR THE SERVICES WILL BE MADE AVAILABLE ON THE WEBSITE OR ANY OF OUR SOCIAL MEDIA ACCOUNTS OR WILL BE STORED BY SOCIALPIPER, (I) THAT WE WILL CONTINUE TO SUPPORT ANY PARTICULAR FEATURE OF THE WEBSITE OR THE SERVICES OR (J) THAT THE QUALITY OF ANY PRODUCTS, SERVICES, OR INFORMATION PURCHASED OR OBTAINED BY YOU FROM THE WEBSITE OR THE SERVICES OR A THIRD PARTY WILL MEET YOUR EXPECTATIONS OR BE FREE FROM MISTAKES, ERRORS OR DEFECTS.

(e) BOTH THE WEBSITE AND THE SERVICES COULD INCLUDE TECHNICAL OR OTHER MISTAKES, INACCURACIES OR TYPOGRAPHICAL ERRORS. WE MAY MAKE CHANGES TO THE WEBSITE OR THE SERVICES, INCLUDING THE PRICES OF THE SERVICES, AT ANY TIME WITHOUT NOTICE. THE CONTENT ON THE WEBSITE MAY BE OUT OF DATE, AND WE MAKE NO COMMITMENT TO UPDATE SUCH CONTENT.

(f) THE USE OF THE WEBSITE AND THE SERVICES OR THE DOWNLOADING OR OTHER ACQUISITION OF ANY CONTENT OR SERVICES THROUGH THE WEBSITE OR THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITIES.

(g) SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

(h) Third-Party Sites and Information. The Website or the Services may provide links or references to other sites on the Internet or otherwise include references to information, documents, software, materials and/or services and products provided by third parties. These sites may contain information or material that some people may find inappropriate or offensive. These other sites and parties are not under our control, and you acknowledge that we are not responsible for the accuracy, copyright compliance, legality, decency, or any other aspect of the content of such sites, nor are we responsible for errors or omissions in any references to other parties or their products and services. The inclusion of such a link or reference is provided merely as a convenience and does not imply endorsement of, or association with, the site or third party by us, or any warranty of any kind, either express or implied.  Different terms and conditions and privacy policies may apply to your use of any other site. We are not responsible or liable, directly or indirectly, for any damage, loss or liability caused or alleged to be caused by or in connection with any use or reliance on any content, products or services available on or through any such linked site.   

INDEMNITIES

       9.4 Indemnification by Customer. To the fullest extent permitted by law, You agree to fully indemnify, hold harmless and defend us, our subsidiaries and affiliates, and each of our and their owners, directors, officers, agents, advisors, contractors, partners, licensors, licensees and employees from and against all claims, demands, actions, suits, damages, liabilities, losses, settlements, judgments, costs and expenses (including but not limited to reasonable attorneys’ fees and costs), whether or not involving a third party claim, which arise out of or relate to, directly or indirectly, your use of the Website or the Services, your use of any Third-Party Services or products provided by third parties that are made available by the Website or the Services (including using any of Social Networks), or any violation of this Agreement or of any law, rule, regulation or order, or the rights of any third party, including without limitation, any violation of any third party’s intellectual property, privacy right or personal information (as defined in the Privacy Policy) arising out of your use of the Website or Services or your transmission of Content. This indemnity shall survive any termination of your use of the Website or the Services.

LIMITATIONS OF LIABILITY

    9.5 Maximum Liability. NOTWITHSTANDING ANYTHING SET FORTH HEREIN TO THE CONTRARY AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE LIABILITY OF SOCIALPIPER, ITS AFFILIATES, PARTNERS, OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, ADVISORS, AND AGENTS TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE GREATER OF $100 OR THE AMOUNT PAID, IF ANY, BY YOU AS FEES TO SOCIALPIPER IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE SUCH CAUSE OF ACTION ALLEGEDLY AROSE.  IN NO EVENT WILL SOCIALPIPER, ITS AFFILIATES, PARTNERS, OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, ADVISORS, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGE OF ANY KIND, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOSS OF USE, DATA OR PROFITS, ARISING FROM YOUR USE OF THE WEBSITE, THE SERVICES, OR ANY OF THE CONTENT OR OTHER MATERIALS ON, ACCESSED THROUGH OR DOWNLOADED FROM THE WEBSITE OR THE SERVICES, EVEN IF SOCIALPIPER, OR ANY OF ITS AFFILIATES, PARTNERS, OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, ADVISORS OR AGENTS ARE AWARE OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  YOU ACKNOWLEDGE THAT IF NO FEES ARE PAID TO US FOR USE OF THE WEBSITE OR THE SERVICES, UNLESS OTHERWISE PERMITTED BY LAW, YOU SHALL NOT BE ENTITLED TO DAMAGES OF ANY KIND FROM US, REGARDLESS OF THE CAUSE OF ACTION.  THE FOREGOING LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE.

FURTHER, WE SHALL NOT BE LIABLE IN ANY WAY FOR THIRD PARTY GOODS AND SERVICES OFFERED THROUGH THE WEBSITE OR THE SERVICES OR FOR ASSISTANCE IN CONDUCTING COMMERCIAL TRANSACTIONS THROUGH THE THIRD PARTY WEBSITES, INCLUDING WITHOUT LIMITATION, THE PROCESSING OF ORDERS OR ACCESSING CONTENT.

FOR CLARITY, THE CALCULATION OF EACH PARTY’S LIABILITY UNDER THIS SECTION 9.5 EXCLUDES ANY FEES PAID BY CUSTOMER TO A THIRD PARTY, EVEN WHERE SOCIALPIPER’S SERVICES ARE BUNDLED WITH OR OTHERWISE PROVIDED IN CONJUNCTION WITH SUCH OTHER PRODUCTS OR SERVICES (SUCH AS BUT NOT LIMITED TO THE ADS BUDGET). THE LIMITATIONS OF LIABILITY IN THIS SECTION 9.5 ALSO APPLY TO OUR AFFILIATES AND THE DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS OF SOCIALPIPER AND OUR AFFILIATES AND TO CLAIMS BROUGHT BASED ON ANY CAUSE OF ACTION, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR OTHER LEGAL OR EQUITABLE THEORY.

SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU BUT ONLY IF SO DIRECTED BY LAW.

    9.6 Excluded Damages.

        (a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, OR FOR LOSS OF PROFITS, GOODWILL OR DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SERVICES OR THE WEBSITE.

        (b) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SOCIALPIPER BE LIABLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM UNAUTHORIZED ACCESS TO OR USE OF THE SERVICES OR YOUR ACCOUNT OR THE CONTENT OR INFORMATION CONTAINED THEREIN, EXCEPT TO THE EXTENT SOCIALPIPER’S BREACH OF THE SECURITY STANDARDS RESULTS IN THE UNAUTHORIZED DISCLOSURE OF YOUR CONFIDENTIAL INFORMATION. Accordingly, our liability is limited to the fullest extent permitted by applicable law, and under no circumstances will we be liable to you for any lost profits, revenue, information, consequential, special, indirect, punitive, exemplary, or incidental damages arising out of or related to this Agreement or our Services, even if SocialPiper has been advised of the possibility of such damages.  Our aggregate liability arising out of or relating to this Agreement or our Services will not exceed the greater of $100 or the amount you have paid us in the last three (3) consecutive months.

        (c) YOUR EXCLUSIVE REMEDIES FOR ANY INTERRUPTION OR CESSATION OF ACCESS OR TRANSMISSION TO OR FROM THE SERVICES ARE SET FORTH IN SECTION 6.4.

    9.7 Basis of Bargain. THE ESSENTIAL PURPOSE OF SECTIONS 9.4 THROUGH 9.6 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF SOCIALPIPER WERE TO ASSUME ANY FURTHER LIABILITY. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.

    10. General.

    10.1 Assignment; No Third Party Beneficiaries.

  1. (a)Assignment. Neither party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the other party (not to be unreasonably withheld), and any attempted assignment without such consent will be void. Notwithstanding the foregoing, we may assign this Agreement in its entirety (including all Confirmed Orders), without your consent, to any of our Affiliates, or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of our shares or assets.
  2. (b)No Third Party Beneficiaries.  This Agreement is exclusively for the benefit of the parties, and it may not be enforced by any party other than a party hereto.  This Agreement shall not give rise to liability to any third party other than the authorized successors and assigns of the Parties.    

    10.2 Relationship of the Parties. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect.

    10.3 Publicity. Unless you provide us with written notice to the contrary or of any reasonable restrictions or requirements, you agree that we may disclose that you are a customer of SocialPiper’s and of the Services and may use your name(s) and logo(s) in: (a) SocialPiper’s digital, online, and printed marketing materials (including on our Website); and (b) external-facing presentations, including to individual clients and prospects and at trade shows, conferences, and similar events.

    10.4 Force Majeure. In addition to any excuse provided by applicable law or as set forth in this Agreement, we shall be excused from liability for non-delivery or delay in delivery of the Website and/or the Services available through our Website arising from any event beyond our reasonable control, whether or not foreseeable by either Party, including but not limited to, labor disturbance, war, fire, accident, adverse weather, inability to secure transportation, governmental act or regulation, cyberattack or breach, and other causes or events beyond our reasonable control, whether or not similar to those which are enumerated above.

    10.5 Amendment. We may change any part of this Agreement (including any terms or documents incorporated by reference in this Agreement) at any time by posting the revised terms on our Website. It is important for you to review this Agreement before using our Services and from time to time, though we will notify you of any changes that, in our sole discretion, materially impact this Agreement. The updated Agreement will be effective as of the time of posting, or on such later date as may be specified in the updated Agreement, and your continued use of the Services after any such changes are effective will constitute your consent to such changes. Except for changes made by us as described here, no other amendment or modification of this Agreement will be effective unless set forth: (a) in a Confirmed Order issued by SocialPiper; or (b) in an agreement signed or otherwise agreed in writing by both you and SocialPiper.

    10.6 Severability. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the Parties, and the remaining portions shall remain in full force and effect.

    10.7 Notices to You. SocialPiper may give notice to you by placing a banner notice on the Website. We may also contact you or your Authorized Users through your SocialPiper account or contact information you provide, such as email or telephone or through your account on one or more Social Networks. If you fail to maintain accurate account information, such as contact information, you may not receive critical information about our Services or this Agreement.

    10.8 Notices to SocialPiper. For any notice to SocialPiper that you give under or regarding this Agreement, you must notify SocialPiper by email to support@socialpiper.com  with a duplicate copy sent via registered mail to the following address: SocialPiper Inc., 228 Hamilton Avenue, Palo Alto, CA 94301.

    10.9 No Waiver. Any failure by us to enforce or exercise any provision of this Agreement or related rights shall not constitute a waiver of that right or provision.

    10.10 Remedies. Unless otherwise stated, each party’s remedies under this Agreement are not exclusive of any other remedies under this Agreement, at law or otherwise.

    10.11 Governing Law and Dispute Resolution.

        (a) By accessing the Website and/or the Services both you and we agree that the laws of the State of California, U.S. without regard to the conflicts of laws principles thereof or the United Nations Convention on the International Sales of Goods, will apply to all matters, including but not limited to any legal suit, action or proceeding arising out of or related to this Agreement or your use of the Website or Services (“Dispute”).

        (b) If you breach this Agreement or violate our rights or another person’s rights, in addition to any other remedy, we may ask a court for an injunction or injunctions to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions of this Agreement, and you will reimburse us for our reasonable legal fees associated therewith.

        (c) If you have any kind of Dispute with us, the exclusive means of resolving it will be by confidential, binding arbitration before a single arbitrator chosen by you and SocialPiper. You will give notice of your Dispute to us in writing. If we do not decide together on an arbitrator within thirty (30) days after we receive that notice, we both agree that the arbitrator shall be appointed by the American Arbitration Association (the “AAA”) in accordance with the Commercial Arbitration Rules of the AAA (the “Commercial AAA Rules”). The arbitration proceedings shall be governed by the Commercial AAA Rules but need not be administered by that organization. The determination of the arbitrator as to the resolution of any dispute shall be final, binding and conclusive upon all parties hereto. All rulings of the arbitrator shall be in writing, with the reasons for the ruling given, and shall be delivered to the parties. The venue of the arbitration shall be Palo Alto, CA and the seat of the arbitration shall be State of California. Any arbitration award may be entered in and enforced by any court having jurisdiction thereof and the parties hereby consent and submit to the jurisdiction of the courts of any competent jurisdiction for purposes of the enforcement of any arbitration award. The parties agree that after a clear and specific result or factual finding has been made with respect to a particular matter by the arbitrators pursuant to this Section 10.11(c), such clear and specific result or factual finding shall be deemed to have been finally determined by the parties for all purposes under this Agreement and, thereafter, no party shall have the right to seek any contrary determination in connection with any later arbitration procedure hereto. The arbitrator will have the right to decide how the costs should be divided between us. The arbitrator will have the right to accept whatever kind of evidence it thinks is appropriate and will have the right to make whatever award it consider fair and equitable, based on legal and equitable principles, including giving an order such as an injunction (to stop one of us from doing something) or an order that you or we pay damages to the other.

        (d) Any Dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. SocialPiper and you each waive any right to a trial by jury.

    10.12 Export Compliance. You will not use or access our Services if you are located in any jurisdiction in which the provision of our Services is prohibited under the United States of America (“U.S.”) or other applicable laws (a “Prohibited Jurisdiction”) and you will not provide access to our Services to any government, entity or individual located in any Prohibited Jurisdiction. You confirm that you are not named on any U.S. government list of persons or entities prohibited from transactions with any U.S. person; (b) you are not a national of, or a company registered in, any Prohibited Jurisdiction; (c) you will not allow Authorized Users to access or use our Services in violation of any U.S. or other export embargoes, prohibitions or restrictions; and (d) you will comply with all applicable laws regarding the transmission of data exported from the country in which you (or your Authorized Users) are located to the United States.

    10.13 Entire Agreement. This Agreement, including the other documents referred to as applicable to the Services in this Agreement, is the entire agreement between you and SocialPiper for your use of our Services. Any prior understandings, statements or and agreements (oral or written) do not apply, including additional terms that you may present (such as terms in a unilateral notice from you to us or printed on a purchase order or any other document generated by you). This Agreement is binding on the parties and their permitted successors and assigns.