SubscriptionAgreement

On-Line Subscription Agreement

Updated: 1/28/2014

 

THIS IS A LEGAL AGREEMENT ("AGREEMENT") BETWEEN CUSTOMER AND CLIX MARKETING GROUP, INC. (CLIX). BY ACCESSING AND/OR USING THE SERVICE(S), YOU ARE AGREEING, ON BEHALF OF YOURSELF AND/OR YOUR COMPANY, TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT ACCESS AND/OR USE THE SERVICE(S).

 

1.  Definitions. As used in this Agreement, the following defined terms shall apply:

 

1.1. Agreement means this On-Line Subscription Agreement as may be amended from time to time and any other documents incorporated by reference.

1.2. Confidential Information means any non-public information and/or materials provided by a Party pursuant to this Agreement to the other Party and reasonably understood to be confidential which shall also include Customer Data as defined in 1.5.

1.4. Customer means the legal entity or individual that enters into this Agreement.

1.5. Customer Data means any data created by Customer, its employees and or contractors to further its business purposes which is stored, manipulated or used within the CLIX Services. (By way of example only: including, but not limited to, web site pages, posts to social media, copies of marketing material, advertising copy, telephone scripts and other such data.)

 1.5. Effective Date means the date of electronic acceptance of this Agreement by Customer.

1.6. My Dashboard means Customer's specific page within the CLIX website where Customer subscribes to the Service(s) and provides Customer account information such as Registration Data and Payment Information. Customer may access Customer's My Dashboard page at any time and update certain account information.

1.7 Named Authorized User(s) means those Customer designated individuals who may access and use the Services in accordance with this Agreement. Each Named Authorized User must have a unique identifier (i.e. "Named User ID" as defined below). Customer designated individuals may include, by way of example, employees, contractors, consultants and agents or third parties with whom Customer transacts business as determined by Customer.

1.8 Named User ID means the unique identifier of each Customer designated individual authorized to use the Services.

1.7. Party means individually Customer or CLIX and Parties means Customer and CLIX collectively.

1.8. Payment Information means limited Customer information related to billing and payment matters collected by CLIX during the online registration process. Such Payment Information will include a valid debit card, or credit card number with available credit sufficient to pay the applicable Subscription Fees, an election of a preferred billing frequency, and other information as required by CLIX.

1.9. Privacy Policy means the CLIX Online Privacy Policy which can be viewed by clicking the "Privacy Policy" hypertext link located on the CLIX, ACUCLIX or other product websites.

1.10. Registration Data means limited Customer information collected by CLIX during the online registration process.

1.11. Services means the generally available services, provided by CLIX to Customer, as subscribed to by Customer hereunder. The Services are described in Paragraph 11 and CLIX may update the Services at any time in order to maintain the effectiveness of the Services.

1.12. Subscription Fee means the fee for Customer's use of and access to the Services as subscribed to by Customer.

1.13. Term means the term of this Agreement commencing on the Effective Date and continuing until the expiration of all subscription period(s), including any renewal subscription period(s), for Services as stated on Customer's My Dashboard page.

2.  Customer Rights and Restrictions.

2.1. Customer Access and Use. During the Term of this Agreement, and upon payment of all applicable Subscription Fees, Customer may access and use the Services pursuant to and in accordance with the provisions of this Agreement. CLIX will enable Customer and its Named Authorized Users to access and utilize the Services as contemplated by the Agreement. Thereafter, Customer shall be solely responsible for selecting and managing its users and providing each of them with the information necessary for access to and use of the Services.  Customer may inform its users, customers and employees that the Services are powered by CLIX. If Customer's broadband connection fails, the Services will also fail. The Services may cease to function if there is a power cut or failure. These failures may be caused by reasons outside of the control of CLIX.

2.2. Reverse Engineering. Except to the extent permitted by law, Customer may not modify, distribute, prepare derivative works of, reverse engineer, reverse assemble, disassemble, decompile or otherwise attempt to decipher any code used in connection with the Services and/or any other aspect of CLIX's technology.

2.3. Abuse. Customer shall not access and/or engage in any use of the Services (i) in a manner that abuses or materially disrupts the networks, security systems, Services and/or websites of CLIX and/or (ii) to communicate any message or material that is deemed harassing, threatening, indecent, obscene, slanderous, or otherwise unlawful.

2.4. Illegal Purposes. Customer shall not use the Services for fraudulent or illegal purposes.

2.5. Resale. Customer shall not market, offer to sell, sell and/or otherwise resell the Services to any third party.

2.6. No Representation by Customer. Neither Customer nor any of its Named Authorized Users, customers, employees or representatives shall make any representations with respect to CLIX, the Services or this Agreement (including, without limitation, that CLIX is a warrantor or co-seller of any of Customer's products and/or services).

2.7. Cookies. By using the CLIX Services or websites, Customer agrees to the use of cookies. Cookies are small text files that contain data and are used to enhance Customer's experience. CLIX uses cookies to facilitate the use of the Services and websites. Analytical cookies are used to collect information to improve how the Services and websites work. Functional cookies are used to store Customer's preferences and improve the functionality of the Services.

2.8. Limited Grant of Rights. No other rights are granted hereunder to Customer except as expressly set forth in this Agreement.

3.  Online Registration. To subscribe to Services via the various CLIX product websites, Customer must complete the online registration process, including Customer's electronic acceptance of this Agreement, and CLIX must then accept such online registration. CLIX may reject an online registration by a potential Customer in its sole discretion and is not obligated to provide a reason for its rejection. In the event a potential Customer's online registration is rejected by CLIX, such potential Customer may submit a new online registration for re-evaluation by CLIX.

3.1. Registration Data. All Registration Data provided by or on behalf of Customer must be current, complete and accurate, and Customer is solely responsible for updating such Registration Data as necessary. CLIX reserves the right to terminate this Agreement immediately in the event any Registration Data is found to be inaccurate, incomplete and/or not current at any time. Customer is hereby informed that Registration Data is subject to automatic processing by CLIX for the purposes of managing Customer's account. Customer will have access to Registration Data and may update or correct it as necessary.

3.2. Account Password/Security. As part of the online registration process, Customer will choose a password and a user name. Customer is entirely responsible for maintaining the confidentiality of its password and account, and Customer is solely responsible for any and all activities that occur under its account. Customer agrees to notify CLIX immediately of any unauthorized use of its account or any other breach of security. CLIX shall not be liable for any loss that Customer may incur as a result of a third party using its password or account, either with or without its knowledge. Customer may be held liable for losses incurred by CLIX and/or another party due to a third party using Customer's account or password.

3.3. Payment Information. All Payment Information provided by or on behalf of Customer must be current, complete and accurate, and Customer is solely responsible for updating such Payment Information as necessary. Customer hereby authorizes CLIX, from time to time, to take steps to determine whether the debit card or credit card number provided is valid. CLIX reserves the right to terminate this Agreement immediately in the event any Payment Information is found to be inaccurate, incomplete and/or not current at any time. CLIX shall not be responsible for any overdraft charge or other fees that may be incurred by CLIX's use of Customer's debit card or credit card for payment hereunder. CLIX may at its discretion allow Customer to pay by check provided that the monthly fee shall be the maximum amount as set forth in the Services purchased.  CLIX shall email the invoice which shall be payable within ten (10) business days.  

3.4. Trial and Promotional Offers. From time to time, CLIX may offer certain trial and/or promotional offers. CLIX reserves the right to discontinue or modify coupons, credits, trials and promotional offers at its discretion and without notice. Any such trial or promotional offers may not be combined with other coupons, credits, trials, promotions or any other discounts, and are limited to one (1) per Customer.

3.5. Privacy Policy. CLIX's use of any information provided by Customer, including without limitation, Registration Data and Payment Information, is set forth in CLIX's current Privacy Policy set forth in Pagraph 14.

4.  Term and Termination.

4.1. Term. This Agreement shall commence on the Effective Date until terminated by Customer.

4.2. Termination for Cause. CLIX reserves the right to terminate this Agreement immediately if Customer breaches any of its material obligations under this Agreement.

4.3. Effect of Termination. Upon termination of this Agreement, Customer will immediately discontinue all access to and use of the Services and cease to represent in any form that it is a user of the Services. CLIX will immediately disable Customer's account upon termination. Neither Party shall be liable for any damages resulting from a termination of this Agreement in accordance with this Section 4.3; provided, however, the termination of this Agreement shall not affect any claim arising prior to such termination.

4.4. Customer Data:  Upon termination all Customer Data will be purged as set forth in Paragraph 15 herein.

5.  Fees and Charges.

5.1. Subscription Fees. Customer is responsible for all Subscription Fees, and hereby authorizes CLIX to obtain payment of such in accordance with the Payment Information, as stated on Customer's My Dashboard page. Customer shall also be responsible for all applicable taxes (withholding tax, sales tax, services tax, value-added tax (VAT), goods and services tax (GST), etc.) or duties imposed by any government entity or collecting agency EXCEPT those taxes based on CLIX's net income. In the event Customer fails to satisfy its tax and/or duty obligations herein, Customer shall reimburse CLIX upon demand for any taxes and/or duties paid on behalf of Customer and shall indemnify and hold CLIX harmless against any claim and/or liability (including penalties) resulting from Customer's failure to pay such taxes and/or duties.

5.2. Data & Voice Charges. Customer shall be responsible for all fees and charges imposed on Customer by Customer's telephone carriers, wireless providers, and other voice and/or data transmission providers for voice and/or data transmission used by Customer to access and use the Services.

6.  Confidentiality. Unless expressly authorized in writing by the other Party, neither Party shall disclose to any third party any Confidential Information of the other Party, nor use such Confidential Information, in any manner other than to perform its obligations pursuant to this Agreement. The foregoing restrictions do not apply to any information that (i) is publicly disclosed through no fault of the receiving Party, (ii) is already lawfully in the receiving Party's possession and not subject to a confidentiality obligation to the disclosing Party, (iii) becomes known to the receiving Party from a third party having an apparent bona fide right to disclose the information, or (iv) is Confidential Information that the receiving Party is obligated to produce pursuant to an order of a court of competent jurisdiction or a valid administrative subpoena, provided receiving Party supplies disclosing Party with timely notice of such court order or subpoena. Furthermore, Customer will keep in confidence all passwords and/or other access information related to the Services. Customer acknowledges that CLIX, and its licensors, retain all intellectual property rights and title, in and to, all of their Confidential Information and/or other proprietary information. This shall include, but not be limited to: products, services, and the ideas, concepts, techniques, inventions, processes, software or works of authorship developed, embodied in, or practiced in connection with the Services provided by CLIX hereunder.

7.  WARRANTY. CLIX WARRANTS THAT (i) ANY SERVICES PROVIDED HEREUNDER WILL BE PERFORMED IN A PROFESSIONAL AND WORKMANLIKE MANNER; (ii) THE SERVICES WILL PERFORM SUBSTANTIALLY IN ACCORDANCE WITH THE APPLICABLE SERVICE DOCUMENTATION UNDER NORMAL USE AND CIRCUMSTANCES; AND, (iii) THE FUNCTIONALITY OF THE SERVICES WILL NOT BE MATERIALLY DECREASED DURING THE TERM. CLIX'S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY PURSUANT TO THIS WARRANTY WILL BE, AT THE SOLE OPTION OF CLIX AND SUBJECT TO APPLICABLE LAW, TO PROVIDE RESTORED SERVICE(S) WHICH CONFORMS TO THESE WARRANTIES OR TO TERMINATE THE SERVICE(S) AND PROVIDE A PRO-RATED REFUND OF ANY PREPAID SUBSCRIPTION FEES (FOR THE PERIOD FROM THE DATE OF THE BREACH THROUGH TO THE END OF THE TERM). TO THE EXTENT PERMITTED BY APPLICABLE LAW, CLIX DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. CLIX MAKES NO WARRANTY THAT ANY OF THE SERVICES WILL MEET THE REQUIREMENTS OF CUSTOMER OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES AND CONDITIONS, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMER.

8.  LIMITATION ON LIABILITY. IN NO EVENT SHALL CLIX BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL LOSS, EXEMPLARY OR OTHER DAMAGES RELATED TO THIS AGREEMENT OR WHETHER DIRECT OR INDIRECT: (i) LOSS OF DATA, (ii) LOSS OF INCOME, (iii) LOSS OF OPPORTUNITY, (iv) LOST PROFITS, AND (v) COSTS OF RECOVERY OR ANY OTHER DAMAGES, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, AND INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR OTHERWISE, AND WHETHER OR NOT CLIX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, CLIX'S LIABILITY HEREUNDER IS LIMITED TO $50.00. IN THE EVENT SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.

9.  CHOICE OF LAW AND LOCATION FOR RESOLVING DISPUTES.

Florida law shall govern this Agreement, and any dispute arising from the relationship between the parties to this Agreement, excluding any laws that direct the application of another jurisdiction's laws. The parties consent to the exclusive jurisdiction and venue of the State and Federal courts of the State of Florida located within the City of Tampa, State of Florida.

10.   Additional Terms.

10.1. Relationship of the Parties. Customer and CLIX are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.

10.2. Assignment. Customer may not assign its rights or delegate its duties pursuant to this Agreement either in whole or in part, and any such attempted assignment or delegation shall be void.

10.3. Force Majeure. Neither Party will be responsible for any delay, interruption or other failure to perform pursuant to this Agreement due to acts beyond its reasonable control, but only for so long as such conditions persist. Force majeure events include, but are not limited to: natural disasters (e.g., lightning, earthquakes, hurricanes, floods); wars, riots, terrorist activities, and civil commotions; activities of local exchange carriers, telephone carriers, wireless carriers, Internet service providers, and other third parties; explosions and fires; embargoes, strikes, and labor disputes; governmental decrees; and any other cause beyond the reasonable control of a Party.

10.4. Notice. CLIX may provide Customer with notices via email, regular mail and/or postings on the CLIX, AcuClix or other product websites.

10.5. Compliance with Laws. Both Parties agree to comply with all applicable local, state, national and foreign laws, rules, and regulations, including, but not limited to, all applicable export and import laws and regulations, in connection with their performance, access and/or use of the Services pursuant to this Agreement. Notwithstanding the preceding sentence CLIX does not guarantee that the Services shall be appropriate and/or available for use in any particular location and Customer is responsible for compliance with local laws to the extent applicable. CLIX reserves the right to modify the Services for any reason, without notice and without liability to Customer or any end user. Customer shall comply with all legal duties applicable to the Customer including obligations as data controller by virtue of Customer's role as Named Authorized User. Customer must provide the relevant persons and/or participants with all information Customer is required by law to provide and, if necessary, must obtain the consent of these persons and/or participants. Notwithstanding any other provision in this Agreement, CLIX shall have the right to terminate this Agreement immediately upon the determination by CLIX that Customer is not in compliance with U.S. export laws or violates any government privacy and/or data protection laws.

10.6. No Waiver. The failure of either Customer or CLIX in any one or more instance(s) to insist upon strict performance of any of the terms of this Agreement will not be construed as a waiver or relinquishment of the right to assert or rely upon any such term(s) on any future occasion(s).

10.7. Severability. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision shall be severed from this Agreement and the other provisions shall remain in full force and effect and the Parties agree to comply with the remaining terms of this Agreement in a manner consistent with the original intent of the Agreement.

10.8. No Third Party Beneficiaries. No person or entity not a party to this Agreement will be deemed to be a third party beneficiary of this Agreement or any provision hereof.

10.9. Entire Agreement. This Agreement sets forth the entire agreement and understanding of the Parties relating to the subject matter hereof and supersedes all prior and contemporaneous oral and written agreements and understandings with respect to the same. No waiver or amendment of any term or condition of this Agreement shall be valid or binding on either Party unless agreed to in writing by both Parties.

10.10. Captions and Headings. Captions and headings are used herein for convenience only, are not a part of this Agreement, and shall not be used in interpreting or construing this Agreement.

10.11. Controlling Language. The English language version of this Agreement shall be the controlling version and is incorporated by reference into any translation of this Agreement. Any translation or other language version of this Agreement shall be provided for informational purposes only.

10.12. References. Pronouns contained in this Agreement shall apply equally to the feminine, neuter and masculine genders. The singular shall include the plural, and the plural shall include the singular.

10.13. Beta version. The terms of this subsection 10.13 shall only apply to Customer with respect to any "Beta' version of any of the Services (the "Beta Services") made available to Customer for purposes of evaluation and feedback. Customer acknowledges that the Beta Service(s) Customer is evaluating may contain bugs, errors and other problems and is provided to Customer "as-is." Therefore, to the extent permitted by applicable law, CLIX disclaims any warranty, condition and/or liability obligations to Customer of any kind with respect to the Beta Services. Customer further acknowledges the importance of communication between CLIX and Customer during Customer's use of the Beta Services and participation in CLIX's Beta program and hereby agrees to receive related correspondence and updates from CLIX. In the event Customer requests to opt-out from such communications, Customer's participation in the CLIX Beta program will be canceled. Customer also hereby acknowledges that CLIX has not made any representations, promises or guarantees that the Beta Services will ever be announced or made available to anyone in the future and that CLIX has no express or implied obligation to Customer to announce or introduce the Beta Services. During the CLIX Beta program, Customer will be asked to provide feedback regarding Customer's use of the Beta Service(s) and Customer hereby grants to CLIX a perpetual, royalty-free worldwide license to use and/or incorporate such feedback into any CLIX product or service (including the Beta Services) at any time at the sole discretion of CLIX. With respect to the Beta Services, this subsection shall supersede any other terms and conditions contained herein, but only to the extent necessary to resolve conflict.

11.  Description of Services. The selection(s) made and submitted by Customer during the online registration process will identify the specific Service(s) subscribed to by Customer hereunder and the number of Named Authorized Users for each Service, all of which shall be listed on Customer's My Dash Board within the CLIX website. Notwithstanding, this Agreement will apply to any Services subscribed to by Customer at any time on or after the Effective Date. The following describes the Services currently offered by CLIX are set forth in Schedule 1.

12.  Customer Access and Use. During the Term of this Agreement, and upon payment of all applicable Fees, Customer may access and use the Services subscribed to hereunder pursuant to and in accordance with the provisions of this Agreement. CLIX will enable Customer and its Named Authorized Users to access and utilize the Services as contemplated by the Agreement. Thereafter, Customer shall be solely responsible for selecting and managing its users and providing each of them with the information necessary for access to and use of the Services.  Customer may inform its users, customers and employees that the Services are powered by CLIX.  If Customer's broadband connection fails, the Services will also fail. The Services may cease to function if there is a power cut or failure. These failures may be caused by reasons outside of the control of CLIX.

13.  Training. In connection with the Services subscribed to hereunder, Customer shall have access to generally available remote training session(s) for all individuals who are either Named Authorized Users or authorized by Customer to access the Services.

14.  Privacy. CLIX's Privacy Policy may be viewed at CLICK HERE. CLIX reserves the right to modify the privacy policies in its reasonable discretion from time to time.

15.   Customer Data.

15.1 Confidential:  CLIX shall maintain such Customer Data as Confidential Information and shall disclose such Customer Data only pursuant to instructions from Customer or as required by law. CLIX has implemented appropriate technical and organizational measures to protect Customer Data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access.

15.3 Property of Customer:  Customer Data is and will remain during the term of this Agreement and after the termination thereof, the exclusive property of the Customer and CLIX shall not disseminate, nor use in any manner Customer Data without the express written permission of the Customer.

15.4  Purge upon Termination: That within thirty (30) days of the termination of the Service and payment of any outstanding invoices, CLIX shall purge all such Customer Data from its servers and shall provide a written statement to Customer of this action.

 

Schedule 1

Services Provided by CLIX

 

 

Marketing Compliance Service:

Marketing Compliance Manager (MCM). By subscribing to the Marketing Compliance Manager © (MCM) Service, Customer purpose of enabling Named Authorized Users to use the Service to review, inspect, collate, and otherwise manage marketing material used by Employees of Customer in furtherance of its business objectives.

 

 

Social Media Inspection Service:

AcuClix©. By subscribing to AcuClix©, Customer may access and use the AcuClix© application for the purpose of enabling Named Authorized Users to use the Service to review, inspect, collate, and otherwise manage various social media communication being used by Employees of Customer in furtherance of its business objectives.