SUBSCRIPTION LICENSE AGREEMENT
THIS ONLINE SUBSCRIPTION LICENSE AGREEMENT (THE “AGREEMENT”) IS BY AND BETWEEN VizerSocial LLC D/B/A OWNER ACCESS NETWORK (“OWNER ACCESS”), AND YOU (THE “SUBSCRIBER”). THIS AGREEMENT SHALL BE EFFECTIVE AS OF THE DATE OF ELECTRONIC ACCEPTANCE BY CLICKING A BOX INDICATING ACCEPTANCE (“EFFECTIVE DATE”). EACH OF OWNER ACCESS AND SUBSCRIBER IS A “PARTY” AND TOGETHER THEY ARE THE “PARTIES”.
THIS AGREEMENT GOVERNS ANY USAGE OF OWNER ACCESS SERVICES OR PRODUCTS BY SUBSCRIBER.
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 TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
WHEREAS, Owner Access offers the use of a software platform and software (collectively the “Services”) through its website www.vizersocial.com (the “Website”) which enables a Subscriber to manage the online reputation of a business through mention monitoring, business listing correction, social media management, review moderation and generation, and brand sentiment.
WHEREAS, Subscriber desires to utilize the Services provided through the Website, and Owner Access has agreed to provide such Services pursuant to the terms and conditions of this Agreement.
NOW, THEREFORE, the Parties hereto, for good and valuable consideration, the receipt, adequacy, and sufficiency of which are hereby acknowledged, and intending to be legally bound, hereby agree as follows:
1. Subscription License Grant
a. License to Use Services. Owner Access hereby grants to Subscriber a non-exclusive non-transferable license(s) during the Term (the “License(s)”) to access and use the Services in accordance with this Agreement. All rights not expressly granted to Subscriber under this Agreement are reserved by Owner Access. Each License granted to Subscriber pursuant to this Agreement will permit use of the Services by Subscriber as to one (1) Location only.
b. Location. Each License granted to Subscriber is limited in use as to one location only (the “Location”). Subscriber can change the Location associated with a particular License at any time. For example, one license allows a subscriber to use the Services to manage the reputation of one physical storefront, two licenses allow a subscriber to manage the reputation of two physical storefront, and so on. Similarly, only one license would be needed to utilize the Services for a business with no physical location. Subscriber understands that the aforementioned restrictions are contractual in nature and that Owner Access reserves the right to review Subscriber’s actual license usage at any time throughout the Term to ensure compliance with the permitted license type. Any unauthorized access to Services, or other abuse or impermissible activity on the Website or in connection with the Services, may result in immediate suspension or termination of this Agreement. Subscriber will promptly notify Owner Access of any unauthorized use of the Services in breach of this Agreement, any unauthorized use of its License(s), or any other known or suspected breach of security.
c. Limitations on Use. The Services are for use only by Subscriber. Except as permitted by this Agreement, the Services may not be decompiled, reverse engineered, disassembled, transferred, distributed, resold, sublicensed, or used to create any derivative works. Subscribers may not use any network monitoring or discovery software to determine the Website’s or Service’s architecture, or extract information about usage or individual identities of users. Subscriber may not use any robot, spider, other automatic software or device, or manual process to monitor or copy the Website or Services. Subscriber may not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third-party the Services in any way; (ii) modify or make derivative works based upon the Website or Services; (iii) “frame” or “mirror” any content on any other server or wireless or Internet-based device; (iv) develop applications for internal use or install additional applications that are designed to run on or be used in conjunction with the Services. Subscriber may use the Website and Services only for its internal business purposes and shall not (i) use the Website or Services in association with sending spam or otherwise duplicative or unsolicited messages; (ii) use the Website or Services in association with infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or material in violation of third party privacy rights; (iii) use or introduce material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Website or Services; or (v) attempt to gain unauthorized access to the Website, Services, or its related systems or networks.
2. Term and Service Details.
a. Terms. The term of each License (“Term”) will be three months as chosen by the Subscriber during the subscription process, starting on the Effective Date. Each License(s) granted hereunder shall automatically renew at the expiration of its Term under the terms of this Agreement, unless it is cancelled prior to its expiration via written notice to Owner Access.
b. Service Details. Subscriber will have access to the Reputation Management, Customer Voice, Social Marketing and Listing Builder tools.
3. Fees.
The fees for a License (“Subscription Fees”) are as follows:
a. Quarterly Dues The cost of a subscription license is $250.00 per quarter, plus applicable sales tax.
4. Payment and Termination.
Payment of Subscription Fees shall be made in advance and in quarterly installments, based on the Term of License chosen by Subscriber, prior to the beginning of each Term. By entering payment information into Owner Access’s system Subscriber grants Owner Access the right to charge Subscriber’s credit card for the contracted amounts outlined herein. Subscriber’s License will automatically renew at the end of the Term for an additional Term, unless Subscriber cancels its License before the end of the current Term. The cancellation will take effect the day after the last day of the current Term. However, if Subscriber cancels its License and/or terminates this Agreement before the end of its current Term, Owner Access will not refund any Subscription Fees already paid.
5. Support
Subscribers are provided access to email support from 9 a.m. to 5 p.m. CST and chat support when available.
6. Representations and Warranties.
a. Mutual. Each Party represents, warrants, and covenants, as applicable, to the other Party that: (i) It has all right, title, and authority to enter into this Agreement; and (ii) Its execution of this Agreement and its engagement hereunder do not constitute a breach of any contract, agreement or understanding, oral or written, to which it is a party or by which it is bound.
b. Limited Warranty. During the Term of this Agreement: (i) the Website and Services shall operate in substantial conformity of the terms of this Agreement t; and (ii) the Site commentaries and text shall accurately reflect the operation of the Services. These are the only warranties issued by Owner Access under this Agreement and as to the Website and Services.
7. Disclaimer of Warranties.
Owner Access will make commercially reasonable efforts to ensure a virus free environment, a reliable operational schedule and to provide timely correction of content known to be inaccurate. Unless otherwise stated in Section 6 (Representations and Warranties), the Site and Services are provided on an “as is” and “as available” basis, and, unless otherwise stated in this Agreement, Owner Access expressly disclaims all warranties, including the warranties of merchantability, and fitness for a particular purpose and non-infringement. Owner Access disclaims all responsibility for any loss, injury, claim, liability, or damage of any kind resulting from, arising out of or any way related to (a) any errors in or omissions from the Website and Services; (b) the unavailability of the Website, Services, or any portion thereof; (c) Subscriber’s use of the Website or Services; (d) Subscriber’s use of any equipment or software in connection with the Website or Services; or (e) any third party web sites or content therein directly or indirectly accessed through links contained on the Website or through the Services. Owner Access does not warranty that Subscriber use of Website and Services will be uninterrupted or error-free, will not result in data loss, or that any security mechanisms will not have inherent limitations.
8. Limitation of Liability
a. THE LIABILITY OF OWNER ACCESS TO SUBSCRIBER FOR ANY AND ALL CAUSE(S) OF ACTION, REGARDLESS OF THE FORM OF ACTION (INCLUDING CONTRACT, TORT, NEGLIGENCE OR ANY OTHER), ARISING OUT OF OR RESULTING FROM THE PERFORMANCE OR BREACH OF THIS AGREEMENT WILL IN NO EVENT EXCEED THE AMOUNT PAID BY SUBSCRIBER TO OWNER ACCESS UNDER THIS AGREEMENT FOR THE APPLICABLE SERVICES IN THE PAST 12-MONTHS PRIOR TO THE EVENT RESULTING IN THE CLAIM.
b. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL OWNER ACCESS, ITS OFFICERS, MEMBERS, EMPLOYEES, AGENTS, DIRECTORS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, ASSIGNS, SUPPLIERS, OR LICENSORS BE LIABLE TO SUBSCRIBER OR TO ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FROM LOST DATA, LOST PROFIT, LOST USE, OR ANY OTHER DAMAGES OF ANY KIND WHATSOEVER IN ANY WAY DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE WEBSITE OR SERVICES, EVEN IF OWNER ACCESS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
c. NOTWITHSTANDING THE FOREGOING, SECTION 8a AND SECTION 8b WILL NOT APPLY TO CLAIMS FOR GROSS NEGLIGENCE, WILLFUL MISCONDUCT, FRAUD, OR CRIMINAL ACTS OR OMISSIONS.
9. Indemnification
Subscriber agrees to indemnify, defend, and hold harmless Owner Access, its officers, members, directors, employees, agents, licensors, and suppliers from and against all claims, losses, expenses, damages and costs, including reasonable attorneys’ fees (collectively, “Losses”), resulting from or in connection with: (i) any breach of any obligation of Subscriber under this Agreement; (ii) any breach by Subscriber of any of its warranties and representations under this Agreement; (iii) violation of any applicable laws by Subscriber, its officers, directors, members, employees, agents, contractors, or affiliates (“Subscriber Responsible Parties”); or (iv) any misuse, loss, damage, corruption, or destruction of the Website or Services by Subscriber Responsible Parties or any breach of security relating to the same.
10. Assignment
Owner Access may assign this Agreement or any part of it without notice to Subscriber, and Owner Access may delegate any of its obligations under the Agreement without notice to Subscriber. Subscriber may not assign the Agreement or any part of it, not transfer or sub-license its rights under the Agreement, to any third-party.
11. Privacy Policy
Subscriber’s use of the Website and Services is subject to Owner Access’s Privacy Policy, which can be found at: https://www.owneraccess.com/privacy-policy, and which is incorporated herein for all intents and purposes. By entering into this Agreement Subscriber acknowledges that it has read the Privacy Policy and agrees to bound by it. The Privacy Policy is current as of its last revision date. However, please note that the Privacy Policy may be amended from time to time to reflect changes and additions to the Privacy Policy. Please check the Privacy Policy for the most current version before relying on any of the provisions in the Privacy Policy.
12. Governing Law and Jurisdiction
This Agreement and all questions relating to its validity, interpretation, performance, and enforcement shall be governed by and construed in accordance with the laws of the State of Texas, notwithstanding any conflict-of-laws doctrine to the contrary, and without the aid of any custom, or rule of law requiring construction against the draftsman. Further, Subscriber and Owner Access agree to the jurisdiction of Travis County, Texas to resolve any dispute, claim, or controversy that relates to or arises from this Agreement.
13. Entire Agreement
This Agreement contains the entire understanding between parties hereto with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements and understandings, inducements, or conditions, express or implied, oral or written, except as herein contained. The express terms hereof control and supersede any course of performance and/or usage of the trade inconsistent with any of the terms hereof.
14. Amendment
Owner Access reserves the right to modify the terms of this Agreement or prices for the Services and may discontinue or revise any or all other aspects of the Services in its sole discretion at any time by posting changes online. Subscriber’s continued use of the Website and Services after changes are posted constitutes Subscriber’s acceptance of this Agreement as modified by the posted changes. The updated, online version of this Agreement shall supersede any prior version of this Agreement. This Agreement may be changed, modified, or amended only by a written agreement signed by both Parties. Subscriber may not modify this Agreement.
15. Notices.
All notices and other communications to be given hereunder shall be given in writing and shall be delivered personally or mailed by registered or certified mail, postage prepaid, return receipt requested, to the address listed below or such other address as may be designated in writing hereafter by a party. Notice shall be deemed to have been duly given on the date of delivery if delivered personally to the party to whom notice is to be given, or as of the date indicated on the return receipt or, if such notice is refused, on the date when delivery of such notice is first refused.
If to Owner Access:
VizerSocial LLC. D/B/A Owner Access Network
P.O. Box 161392
Austin, TX 78716
If to the SUBSCRIBER:
The name and address provided during the subscription process.
16. Headings
The headings of articles, sections, and paragraphs of this Agreement are intended for convenience of identification only and shall not affect the meaning or interpretation of any of the provisions of this Agreement.
17. No Waiver
No waiver of any covenant or condition of this Agreement shall be taken or construed to constitute a waiver of any subsequent breach of such covenant or condition or to justify or authorize the nonobservance on any other occasion of the same or of any other covenant or condition hereof.
18. Attorney Fees
In the event that any party to this Agreement shall commence any suit or action to interpret or enforce this Agreement, the prevailing party in such action shall recover that party’s costs and expenses incurred in connection with the suit or action, including attorney fees and costs of appeal, if any.
19. Severability
Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement will be reformed, construed, and enforced in such jurisdiction as if such invalid, illegal, or unenforceable provisions had never been contained herein.
20. Counterparts/Electronic Signatures
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. For purposes of this Agreement, use of a facsimile, e-mail, or other electronic medium shall have the same force and effect as an original signature.