SocialWhirled Master Subscription Agreement

THIS MASTER SUBSCRIPTION AGREEMENT (THE "AGREEMENT") IS BY AND BETWEEN YOU (“YOU” OR “CUSTOMER”) AND SOCIALWHIRLED, LLC (“US” OR "SOCIALWHIRLED") AND GOVERNS YOUR SUBSCRIPTION AND USE OF OUR SERVICES, INCLUDING ANY APPLICABLE TRIAL PERIODS. BY ACCEPTING THIS AGREEMENT, WHETHER BY CLICKING A BOX INDICATING YOUR AGREEMENT OR BY EXECUTING ANOTHER ORDER FORM REFERENCING THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT.

This Agreement was last updated on September 28, 2015 and is effective between you and us as of the date you accept the Agreement.

  1. Purpose.   SocialWhirled owns and operates a software platform (the "Platform") that allows customers to develop, manage and launch marketing campaigns for branded products on social media, mobile, web-based and other platforms. Customer wishes to obtain a subscription to use the Platform to publish and run sweepstakes, contests, surveys, and other marketing campaigns (each, a "Campaign") for one or more of Customer's branded products or services or, if Customer is an advertising or similar agent, one or more branded products owned by, or branded services provided by, Customer's clients (each such branded product or service, a "Brand").
  2. Order Form.   Customer will execute an ordering document (each such ordering document is herein referred to as an "Order Form") from time to time, which are hereby incorporated into this Agreement as if fully set forth herein. Such Order Form(s) shall set forth the type of subscription(s) (as defined in Section 3, collectively "Subscriptions") any additional services purchased by customer (“Services”), terms and conditions of purchased Subscriptions and Services and any other terms or conditions mutually agreed to by the parties. If there is any conflict between the terms of an Order Form and this Agreement, the terms of the Order Form will govern. Additional terms and conditions may appear on the Order Form and are incorporated into this Agreement by reference and are legally binding.
  3. Subscription.
    1. Subscription.   Subject to full and timely payment of the amounts due to SocialWhirled under this Agreement and the Order Form(s) which Customer may execute from time to time, SocialWhirled hereby grants Customer that type and number of Subscriptions to use the Platform as are set forth in the Order Form(s).
    2. Limitations.
      1. Starter Plan. A single subscription for the Starter Plan shall give Customer a subscription to use the Platform to conduct Campaigns using the SocialWhirled Platform as made available by SocialWhirled subject to the Usage Limits. The Usage Limit for the Starter Plan is 50,000 Opt-Ins per month. For purposes of this Section 3(b)(i), Opt-In is defined as one entrant into a Campaign.
      2. If you exceed your contractual Usage Limit, we will work with you to either 1) reduce your monthly usage to comply with the applicable Usage Limit or 2) you will promptly execute an Order Form to expand or upgrade your subscription to accommodate your usage.
      3. The Subscriptions and Services under this Agreement and the Order Form(s) are non-exclusive, non-transferrable, and may not be sublicensed. Unless otherwise agreed in the Order Form or in Section 6 of this Agreement, Customer's use of the Platform will be on a self-service basis.Customer agrees that it will not use the Platform for purposes of directly competing with SocialWhirled such as using the Platform to monitor the availability, performance or functionality of the Platform or for other benchmarking or competitive purposes.
  4. Free Trial.   If you register for a free trial on our website, we will make certain services available to you on a trial basis free of charge until the earlier of (a) the start date of your Subscription Term or b) your cancellation of the service prior to the start date of your Subscription Term. Unless otherwise agreed to by SocialWhirled, you may only register for one free trial. If you register for multiple free trials, SocialWhirled reserves the right to suspend your access to the Platform.
  5. Term.
    1. Agreement Term.   This Agreement shall commence as of the date Customer accepts the first Order Form which references this Agreement and shall continue until all Order Form(s) which reference this Agreement have expired or otherwise terminated.
    2. Subscription Term.   The term of each subscription (“Subscription Term”) will be specified on the Order Form. Subscriptions will automatically renew for additional terms equal to the expiring Subscription Term unless either party provides notice of non-renewal at least 30 days prior to the end of the expiring Subscription Term. The fee for any automatic renewal term will be the same as the fees for the expiring Subscription Term unless we have provided you notice of a pricing increase at least 60 days prior to the end of the expiring Subscription Term.
    3. Suspension of Services.   Upon breach of this Agreement and/or an Order Form by Customer, SocialWhirled may suspend you Subscription(s) and or Services immediately.
    4. Termination.   Either party may terminate this Agreement or an Order Form upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such 30 day period. If this Agreement is terminated by you for breach in accordance with this Section 5(d), we will refund any prepaid fees covering the remainder of the Subscription Term (including any remaining renewal subscription terms) of the terminated Order Form(s) after the effective date of termination. If this Agreement is terminated by SocialWhirled for breach in accordance with this Section 5(d), you agree to promptly pay all fees covering the remainder of the Subscription Term (including any renewal subscription terms) for all terminated Order Forms. Termination will not relieve you of your obligation to pay any fees payable to SocialWhirled for the period prior to the effective date of termination.
  6. Responsibilities.
    1. SocialWhirled.   Technical support and training will not be provided to Customer's customers unless agreed to by SocialWhirled in its sole discretion.
    2. Customer.   Unless otherwise set forth in the Order Form, Customer, at its own expense, will create and upload all necessary information for the Campaign(s), including contest official rules, images and graphic design with any necessary approvals. Customer is responsible for each Campaign's compliance with all local, state, federal and international rules and regulations. Customer is responsible for paying fees for the entire duration of this Agreement in accordance with the terms of this Agreement and the Order Form(s). Customer is responsible for reviewing Content posted to the Platform or used in its Campaign(s) to assure appropriateness of material.
    3. In no instance will this Agreement or any Order Form be contingent upon the delivery of any future functionality or features.
  7. Pricing/Payment.
    1. Pricing.   The fees for Customer's use of the Platform and services shall be as set forth in the Order Form(s). All prices are exclusive of taxes, duties, shipping and handling charges.
    2. Credit Card.   Unless otherwise agreed to between you and the Company, you agree to provide us with your credit card information and you authorize us to charge such credit card for the fees listed in the Order Form during the Subscription Term and any renewal subscription term(s) as set forth in Section 5(b). Such charges will be made in accordance with the billing frequency indicated on the Order Form. SocialWhirled engages third parties to process credit card payments (“Third Party Processors”). By entering into this Agreement, you authorize SocialWhirled to provide your credit card information to Third Party Processors in connection with processing the payments agreed to by you in the Order Form(s) and for no other purpose.
    3. Invoicing/Payment.   If you and SocialWhirled have agreed that payment will be made by a method other than credit card, SocialWhirled will invoice you for the Fees on terms indicated in each respective Order Form. Customer shall pay all invoices in full on or before the due date indicated on the invoice. Unless otherwise specified, all invoices shall be paid in the currency of the invoice.
    4. Late Payment.   SocialWhirled reserves the right to charge interest of 1.5% of the outstanding balance per month or the maximum allowable by applicable law, whichever is less, for any past due invoices. Customer is responsible for all costs of collection, including reasonable attorneys' fees, for any payment default. In addition, SocialWhirled may suspend access to or terminate Customer's Order Form(s) to which a past due invoice relates if payment is not received in a timely manner.
    5. Taxes.   Federal, state and local sales, use and excise taxes and all similar taxes and duties related to Customer's subscription to use the Platform, (excluding taxes based on SocialWhirled's income, assets or net worth), are the sole responsibility of Customer.
  8. Intellectual Property Rights.   SocialWhirled retains all right, title and interest in any preexisting intellectual property that is owned by SocialWhirled, including the Platform, which may be used in providing Customer access to and use of the Platform or which may otherwise be used in carrying out services for Customer ("SocialWhirled IP"). The SocialWhirled IP includes any modifications or improvements made to SocialWhirled's preexisting intellectual property during or as a result of Customer's use of the Platform or as a result of services SocialWhirled performs for Customer.
  9. User Terms and Conditions.
    1. Ownership of Content.   SocialWhirled acknowledges and agrees that Customer retains all ownership rights in Customer's Content. "Content" means any copyrightable or other material submitted to SocialWhirled by Customer for use in connection with the Platform, a Campaign or other service performed by SocialWhirled that was owned by Customer or Customer's customers prior to submission.
    2. License of Content.   Customer hereby grants SocialWhirled a non-exclusive, royaltyfree, fully paid-up, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content submitted in connection with Customer's use of the Platform for the purpose of SocialWhirled's performance of services for Customer or in support of Campaigns under the Agreement. Customer also acknowledges, understands and agrees that each Customer or third party user or participant of the Platform that Customer authorizes to access the Platform on Customer's behalf will have the ability to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Platform, and that SocialWhirled will not be responsible for any such activity. Any rights that Customer may obtain in such Content as part of the Campaign shall at all times be subject to this Section 9(b).
    3. Acknowledgement of Governing Documents.   Customer acknowledges and agrees that SocialWhirled will collect certain personal information from participants in the Campaigns. Customer also acknowledges and agrees that the SocialWhirled's Terms of Service and Privacy Policy will govern the relationship between participants in the Campaigns and SocialWhirled as well as SocialWhirled’s use of personal information. Customer acknowledges and agrees that SocialWhirled may make its Terms of Service and/or Privacy Policy available through a link in or near the official rules of each Campaign. In furtherance of the foregoing, Customer acknowledges and agrees to include a provision substantially similar to the one set forth below within the Campaign terms and conditions or official rules and Customer further agrees to require all participants in Campaigns to agree to such terms and conditions or official rules: This promotion is administered by a third-party administrator. By participating in this promotion, whether by submitting content or by merely viewing the content, you are using the services of the third-party administrator and you signify your agreement to the third-party administrator's terms of service and privacy policy.
  10. Compliance with Laws and Regulations.   Customer acknowledges and agrees that the Platform merely helps Customer publish its Campaigns and that the Platform provides no safeguards that ensure that Customer operates its Campaigns properly or legally. Customer further acknowledges and agrees that it is solely responsible for providing Campaign rules, terms, conditions, privacy policies or statements and ensuring that Sponsor's Campaigns comply with all applicable laws, rules, and regulations. Customer hereby represents, warrants, and covenants that (i) Customer will comply with all applicable laws, rules, and regulations in Customer's use of the Platform and in the creation, operation and completion of Customer's Campaigns, including without limitation in connection with all advertising and marketing associated with Customer's Campaigns; and (ii) Customer will comply with all statements and promises made to Campaign participants, except to the extent such statements and promises violate applicable laws, rules, or regulations.
  11. Indemnification.   Customer will indemnify and defend SocialWhirled, its officers, directors, employees, and agents from and against any third party claims, demands, loss, damage or expense, including reasonable attorney’s fees ("Claims") (i) related to the Content, including third-party Claims that the Content infringes any U.S. patent, copyright, trademark, or trade secret or any third-party Claims that Customer was not authorized to submit or make use of the Content, (ii) resulting from Customer’s misuse of the Platform, (iii) resulting from Customer’s violation of this Agreement, an Order Form or any other agreement between Customer and SocialWhirled or (iv) resulting from Customer’s actual or alleged violation of any law, rule, or regulation associated with the Campaigns. Customer will pay all damages, costs, and expenses finally awarded to third parties against SocialWhirled in such action or agreed to in settlement. In the event that any Claim is made or suit is commenced against SocialWhirled under which it would be entitled to indemnity under this Section 11, SocialWhirled shall: (i) give prompt written notice of such claim or suit to Customer; and (ii) provide reasonable assistance and cooperation in the defense and settlement of any Claim or legal proceeding. Notwithstanding the foregoing, if the Customer fails to assume its obligation to defend, SocialWhirled may do so to protect its interests and seek reimbursement from the Customer.
  12. Warranties and Limits of Liability.
    1. Limited Warranty.   SocialWhirled is granting Customer a subscription to use the Platform and represents and warrants that the Platform will substantially conform to the Platform's documentation for the term of the Order Form(s).
    2. Warranty Disclaimer.   THE EXPRESS WARRANTIES IN THIS SECTION 12(b) ARE IN LIEU OF, AND SOCIALWHIRLED EXPRESSLY DISCLAIMS, ALL OTHER WARRANTIES IN RELATION TO THE PLATFORM, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, SATISFACTORY QUALITY, OR ARISING FROM A COURSE OF DEALING, LAW,USAGE, OR TRADE PRACTICE. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW AND SHALL IN NO CIRCUMSTANCES BE LONGER THAN THE WARRANTY PERIOD IN SECTION 12(a).
    3. Limitation of Liability.   IN NO EVENT SHALL SOCIALWHIRLED, ITS OFFICERS, MANAGERS, EMPLOYEES, OR AGENTS, BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM CUSTOMER'S USE OF THE PLATFORM OR ANY OTHER SERVICES PROVIDED HEREUNDER, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SOCIALWHIRLED IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SOCIALWHIRLED'S LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE TO SOCIALWHIRLED BY CUSTOMER DURING THE TWELVE (12) MONTHS PRECEDING THE DATE UPON WHICH THE CAUSE OF ACTION AROSE. THE FOREGOING LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION AND NOTWITHSTANDING ANY FAILURE OF THEIR ESSENTIAL PURPOSE. IF CUSTOMER IS AN ADVERTISING OR OTHER AGENT, CUSTOMER'S PRINCIPALS' SOLE RECOURSE SHALL BE AGAINST CUSTOMER.
  13. Relationship of the Parties.   SocialWhirled and Customer are and shall be independent contractors to one another. This Agreement and any Order Form does not and is not intended to create an agency, joint venture or partnership between the parties. Neither party may make any commitments for or create any obligations on behalf of the other party without that party’s prior written consent.
  14. Publicity.   Customer acknowledges and agrees that SocialWhirled may (i) use Customer’s name and trademarks in any news release, public announcement, advertisement, Customer list or other form of publicity that SocialWhirled creates, generates or distributes which describes the services performed by SocialWhirled for Customer hereunder; and (ii) display and perform both during and after the term of the Agreement such Campaign deliverables (including Content) that were previously made public (for example, viral video advertisements previously released on the internet), in connection with describing and marketing the Platform or types of services performed by SocialWhirled.
  15. Miscellaneous.
    1. Entire Agreement.   The Order Form(s), this Agreement and any terms referenced therein, together with all attached exhibits, amendments and addenda, form the entire agreement between the parties relating to the subject matter of this Agreement and supersede any prior representations or agreements, oral or written, and all other communications between the parties relating to the subject matter of this Agreement or the Order Form(s).
    2. Authorization.   If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this Agreement. For purposes of this Section 15(b), Affiliate is defined as any entity that controls either directly or indirectly, is controlled by or is under common control with such entity, and Control is defined as a direct or indirect ownership or control of more than 50% of the voting interests of such entity.
    3. Governing Law.   This Agreement and the Order Form(s) will be governed by the substantive laws of the state of Arizona without giving effect to any choice of law rules.
    4. Assignment.   Customer may not assign its rights or obligations under an Order Form or this Agreement to any third party without the prior written consent of SocialWhirled.
    5. Notices.   Any notice required or permitted to be given under this Agreement must be in writing and will be considered received: (i) when personally delivered; (ii) one business day after having been sent by overnight mail via a professional carrier; or (iii) when sent via facsimile or electronic mail, receipt confirmed. All business communications 1) if sent by Us to Customer must be sent to the address provided in the Order Form(s) or 2) if sent by You to Us must be sent to SocialWhirled, PO Box 870, Phoenix, AZ 85001 or as either party otherwise designates in writing to the other.
    6. General.   Any subsequent additions, deletions or modifications to this Agreement or the Order Form(s) are not binding unless agreed upon in writing by authorized representatives of both parties. If any part of this Agreement or any Order Form is for any reason found to be invalid, illegal or unenforceable, all other parts will still remain in effect. A delay or failure to exercise or partially exercise any right under this Agreement or an Order Form does not operate as a waiver, nor will it preclude future exercise of that right or permit, or sanction any subsequent breach of any term or condition. Except for Customer’s obligation to make timely payments, neither party will be liable for any delays in the performance of this Agreement or an Order Form due to circumstances beyond its control, including but not limited to acts of nature, acts of government, national emergencies, acts of terrorism, transportation delays, labor disturbances, work stoppages or shortages of material. The provisions of this Agreement or an Order Form, which by sense and content are intended to survive, including but not limited to the sections related to payment, warranties,remedies, indemnification and limits of liability, will survive the expiration or termination of this Agreement or the Order Form.