CONTRACT 5952 Vender AgreementQ Hootsuite-
Authorization
Form Prepared For:
City of EI Segundo
350 Main Street
EI Segundo, CA 90245
United States
Item
Vender Agreement No. 59?tsuite Inc
5 East 8th Avenue, Vancouver BC, Canada. V5T 1 R6
Phone: 1-604-681-4668 I Fax: 1-888-412-0295
Quote #: Q-288104-5
Date: 9 -SEP -2020
Expires 16 -SEP -2020
Prices quoted in USD
Account Executive: Kelsey MacAulay
Email: kelsey.macaulay@hootsuite.com
Total
Price
Hootsuite Enterprise I to Build and Manage your Brand and Strengthen Relationships with Customers. Package USD
includes: 45,658.00
• Hootsuite Enterprise Platform:
— 5 Seats
— Franchise Seats - 5 Limited User Roles (User with limited or custom social network permission)
— 50 Social Profiles
• Hootsuite Boost:
— Unlimited Boost Post Spend which automatically boosts top performing content and schedule boosted posts to reach
new audiences in a single, secure campaign workflow
• Hootsuite Professional Services:
— 3 live, web -based product training sessions (60 minutes each)
• Hootsuite Academy:
— 5 Platform Certification exam enrollment
• Hootsuite Insights, powered by Brandwatch (Third -Party Service) for Enterprise. Social Listening and Analytics
— 5 queries for 5 users
• Hootsuite Insights, powered by Brandwatch Expert Services
— (Four (4) Expert hours for on -boarding, implementation, optimization). One -Time
• Hootsuite Ads (subject to the Additional Terms below) with Ads Optimization Services, including: up to two tactical
reviews per week (Hootsuite will review a specific advertising campaign and provide tactical recommendations on how
to increase campaign performance, delivered as a 10-15 minute video), and one 60 -minute strategic review per month
(Hootsuite will provide a one-hour audit of your Facebook Advertising strategy and provide recommendations)
Page 1 of 2
Hootsuite-
Customer:
Contact Name:
Phone:
Company URL:
Customer Billing Address:
City of EI Segundo
Martha Guzman -Hurtado
310-524-2727
http://elsegundo.org
350 Main Street
EI Segundo, CA 90245
United States
Primary Contact Email: mghurtado@elsegundo.org
Billing Contact Name: Martha Guzman -Hurtado
Billing Contact Phone: 310-524-2727
Billing Contact Email: mghurtado@elsegundo.org
Vender Agreement No. 5g§&suite Inc.
5 East 8th Avenue, Vancouver BC, Canada. V5T 1 R6
Phone: 1-604-681-4668 1 Fax: 1-888-412-0295
Billing Schedule:
Payment Terms:
Start of Initial Term
End of Initial Term:
Annually
Payments are due within 30
days of invoice date
28 -SEP -2020
27 -SEP -2022
Additional Terms:
This Authorization Form supersedes the Authorization Form issued by Hootsuite and executed by Customer on 31 -
AUG -2020.
The Total Price shall be invoiced as follows:
* the first invoice for USD 22,829 on 09/28/2020; and
'the second invoice for USD 22,829 on 09/28/2021.
Pursuant to Section 6.2 (Term of Authorization Form) of the Terms, this Authorization Form shall renew for a 12 -month term
at a Total Renewal Price of $22,829.00.
For greater clarity, Customer acknowledges that "Hootsuite Insights powered by Brandwatch" is a Third -Party
Service as defined in the Terms, and expressly agrees to the Brandwatch Terms and Conditions published at
https://www.brandwatch.com/terms-and-conditions/ and the Brandwatch User Privacy Policy published at https://
www.brandwatch.com/legal/user-privacy-policy/.
For the Hootsuite Ads service listed above:
• Pricing is based on an annual ad spend of less than USD 200,000.00 (the "Ad Spend Limit").
• Hootsuite will notify Customer prior to Customer's ad spend reaching the annual Ad Spend Limit, and will provide Customer
with pricing for increasing the Ad Spend Limit for the remainder of the then -current term. If Customer does not agree to such
increase, Hootsuite may revoke Customer's access to the Hootsuite Ads platform without further notice upon Customer's ad
spend reaching the Ad Spend Limit.
• Upon renewal, initial pricing and Ad Spend Limit for subsequent terms will be based on the total Ad Spend Limit (inclusive of
any increases) during the prior year.
By signing this Authorization Form, you agree to: (a) purchase the products and services pursuant to the terms and fees set forth
herein; (b) pay the Total Price (and applicable sales and use taxes) and authorize Hootsuite to submit invoices for such payment; and
(c) be bound by the terms and conditions published at ht;tps,f.jtj , ,utg arrll' Iil _rro is _t rpj (the "Terms"). This Authorization Form will
renew as set forth in the Terms, unless expressly stated otherwise herein.
Scutt Mttrtic ....
Slv l
Name gnature
qty Manager
Title
APPRO F AS TO FORM:
Mar Hensley
City Attorney
.�gmber L 2020
Date of Signature
AT.
�-n f
Tr C c vera
Pd�e' of 2 / y 2
," City Clerk
Vender Agreement No. 5952
Hootsuite Enterprise Terms of Service
Last Modified: January 14, 2019
Please review these terms (the "Agreement") carefully. Wherever
used in this Agreement, "you", "your", "Customer", and similar terms
mean the person or legal entity accessing or using the Enterprise
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 Enterprise Services offered by
Hootsuite Inc. ("Hootsuite", "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: Ihtt :// hoots�� lute,.coirn/le al/enter rluse-terirns. When we change
this Agreement, we will update the "Last Modified" date above.
This Agreement applies only to the Enterprise Services, as further
defined below. The terms that apply to the use of Hootsuite's publicly
available websites or use of other services (such as Hootsuite's Free,
Pro, Professional, and Team plans) (the "Self -Serve Services") are
available at www.hoots uite,.coirn/le al/teriMs.
By purchasing, accessing or using the Enterprise Services, you
confirm that:
A. You will only use our Enterprise Services for business and
professional reasons (the Enterprise Services are not for use by
Vender Agreement No. 5952
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 Enterprise
Services through your account ("Authorized Users"), which may
include your employees, consultants or contractors, or the employees,
consultants or contractors 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 Enterprise Services to any of
your clients or their employees, they are also your Authorized Users.
1. Hootsuite 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.
An "Authorization Form" is a document that we issue and that is
signed or otherwise agreed to by you, which describes the Enterprise
Services and/or Partner Services you are purchasing, including the
fees, the 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 Enterprise
Services.
"Customer Content" is Content that you or your Authorized Users
provide to us or upload to our Enterprise Services.
"Ads Content" is Customer Content that you or your Authorized
Users provide in connection with your creation, posting, or
management of paid advertisements on Facebook, Instagram, or
any other applicable Social Network.
12
Vender Agreement No. 5952
"Mentions" are the Content that a third party (in other words,
someone other than you, an Authorized User or Hootsuite) 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 Enterprise Services. For example, posts created by followers
that appear on your Facebook page would be considered Mentions.
"Enterprise Services" means services included in Hootsuite's
Enterprise or Business plans and any other Hootsuite products or
services made available to you through an Authorization Form or an
Online Order, but does not include: i) Hootsuite's Self -Serve
Services; or ii) any Third -Party Services.
An "Online Order" is a purchase of Enterprise Services through our
website.
"Third -Party Services" are services that are not provided by
Hootsuite that you may access or use in connection with our
Enterprise Services. They include the "Social Networks", which are
the social networking sites supported by our Enterprise Services (such
as Twitter, Facebook, Linkedln, and Instagram), as well as the
extensions and applications available in the Hootsuite App Directory
(Ihtt ://a s,.hoots.flte,.coirn/) and the "Partner Services", which are
third -party services resold by Hootsuite as an authorized reseller.
(b) Headings used in this Agreement are for convenience of
reference only and do not affect the construction or interpretation of
this Agreement.
2. Hootsuite's Enterprise Services.
2.1 Enterprise Services. During the Term, subject to the terms and
conditions of this Agreement, we will: (a) make the Enterprise
Services available to you in accordance with the applicable
Authorization Form; and (b) host and serve the Enterprise Services in
accordance with the Service Level Agreement published
at www.hootsufte.qqWeqal/enter rlse--servluce--Level--a reeiMent.
Vender Agreement No. 5952
2.2 Hootsuite Professional Services. If your Authorization Form
or Online Order includes professional services (such as account set-
up, provisioning, or training) ("Hootsuite Professional Services"), the
Hootsuite Professional Services Terms published
at www.hootsufte.cgWe aI/ rotessluonal�servluces-terirns also apply to
and govern those Hootsuite Professional Services.
2.3 Advertising Terms. If you use the Enterprise Services to
create and manage Ads Content on any Social Network, the Hootsuite
Ads Terms published at, .,hoots�.ilite.,coirn/Ie aI/ads--terirns also
apply to and govern that use.
2.4 Beta Testing. From time to time, we may offer you the
opportunity to install, use and test certain Hootsuite services prior to
their commercial release ("Beta Services"). Use of the Beta Services
is optional. If you use any Beta Services, the Hootsuite Beta Terms
published at.,hoots�.ilite.,coirn/Ie aI/Ilbeta--terirns apply to and govern
those Beta Services.
2.5 Updates. Our Enterprise Services evolve constantly. So long as
we do not breach the warranty set out in Section 9.2(a), we may
change our Enterprise Services (such as by changing, adding or
removing features) at any time, for any reason, and may or may not
provide notice of those changes to you.
2.6 Social Networks. Our Enterprise 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 Hootsuite in its sole discretion (each an "API Change"), we may
stop providing access to those features or functionality and we will not
be liable to you or any third party for any such change.
3. Your Responsibilities.
Vender Agreement No. 5952
3.1 Acceptable Use. You and your Authorized Users must comply
with the Acceptable Use Rules (published
at,.Iloots�.lute,.coirn/Ie aI/ecce taIIIIe-��se) and all applicable laws. If
you or any of your Authorized Users do not comply with the
Acceptable Use Rules or any applicable laws, we may remove any of
your Content and temporarily suspend or restrict your access to the
Enterprise 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.
3.2 Customer Content. You are solely responsible for Customer
Content. We may, but do not have to, review, filter, block or remove
Content, including Customer Content.
3.3 Submitted Content. If you use the Enterprise Services for
contests or otherwise ask people to submit Content through the
Enterprise Services ("Submitted Content"), you acknowledge and
agree that:
(a) the Enterprise Services do not help you comply with any laws,
rules, or regulations that may apply to your collection or use of
Submitted Content, which is solely your responsibility; and
(b) we will not be liable to you or any third party for the Submitted
Content, and we make no warranty that any Submitted Content
obtained or displayed through the Enterprise Services is accurate or
complete.
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 Enterprise Services that
you purchase, subject to the quantities or other usage limits set out in
your Authorization Form or Online Order. If an Affiliate wishes to have
a separate account or wishes to be billed separately for its use of the
Enterprise Services, that Affiliate will need to sign a separate
7
Vender Agreement No. 5952
Authorization Form or place its own Online Order, which will form a
separate contract between Hootsuite and that Affiliate, which will also
be subject to this Agreement.
3.6 Agency. If you act as a legal agent purchasing the Enterprise
Services on behalf of an end-user client (the "Principal"), then (a) that
purchase must be made by signing an Authorization Form; (b) the
Principal must be identified as the end user on the applicable
Authorization Form; (c) 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 Authorization Form) 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 (d) you will defend, indemnify, and
hold harmless Hootsuite 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 and apps from the
App Directory). You and anyone else who accesses our Enterprise
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
n
Vender Agreement No. 5952
transactions with, any Third -Party Services. You must comply with all
agreements and other legal requirements that apply to Third -Party
Services.
4.3 Partner Services. Without limiting the generality of Section 4.2,
if you purchase any Partner Services, you: (a) acknowledge and agree
that we are acting solely as an authorized reseller for such Partner
Services; and (b) expressly agree to be bound by the terms and
conditions applicable to such services listed
at ,,.hoots�.ilite.,coirn/Ie aI/thlurd- Lagy--terrrLs or as otherwise set out in
the applicable Authorization Form.
4.4 App Directory. When you access the App Directory and install
or use one or more apps available there, you also agree to the App
Directory Terms (published at htt s:Hhoots�.ilite,.coirn/Ie aI/a
Iretr--Los)
5. Intellectual Property.
5.1 Enterprise Services. We keep all rights and interests in our
Enterprise Services. The Enterprise Services contain Content owned
or licensed by Hootsuite ("Hootsuite Content"). Hootsuite Content is
protected by copyright, trademark, patent, trade secret and other laws,
and, as between you and Hootsuite, we own and retain all rights in the
Hootsuite 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 Hootsuite 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
9
Vender Agreement No. 5952
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.
6. Term and Termination.
6.1 Term of Agreement. This Agreement will commence on the
first day of the initial term set forth on your first Authorization Form or
the day of your Online Order, as applicable, and will continue in effect
until the earlier of: (a) the expiration of all Authorization Forms and
Online 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 Authorization Forms, Online Orders. The term of
each Authorization Form will start on the first day of the initial term
specified on the Authorization Form, and will continue for the specified
term. The term of each Online Order will start on the day you place the
Online Order, and will continue for the specified term. Except as
expressly stated otherwise in an Authorization Form, all Authorization
Forms and Online Orders will automatically renew for subsequent
one-year renewal periods unless a party gives the other party written
notice of non -renewal at least sixty (60) days prior to the end of the
then -current term. Hootsuite reserves the right to increase the Fees
for Enterprise Services and/or Partner Services on renewal by
providing Customer written notice thereof (which notice may be
provided by email) at least ninety (90) 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 of receiving written notice of
that material breach from the other party; or (b) immediately if the
other party becomes the subject of a petition in bankruptcy or any
10
Vender Agreement No. 5952
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 Authorization Forms and Online Orders will
automatically terminate; (b) your access to Hootsuite accounts,
Enterprise Services and Partner Services will be terminated and you
will immediately cease all use thereof; and (c) you will pay all unpaid
amounts you owe to Hootsuite. If you terminate this Agreement in
accordance with Section 6.3, Hootsuite will refund any Fees you paid
in advance for the Enterprise Services and Partner Services
applicable to the period after termination. If Hootsuite terminates this
Agreement in accordance with Section 6.3, then you will pay any
unpaid Fees for the remainder of the term of each Authorization Form
and Online Order. In no event will termination of this Agreement
relieve you of your obligation to pay any amounts payable to Hootsuite
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.
7.1 Online Orders. The Hoots. lte OnNne I"g r gnt 'Terirns apply to
any purchase made through an Online Order. You are responsible for
paying all taxes on all fees that you pay to us; local taxes may differ
based on your payment method.
7.2 Authorization Forms. The following terms apply to any
purchase made by signing an Authorization Form:
(a) Fees. You will pay all fees as and when described in the
Authorization Form(s) (the "Fees").
11
Vender Agreement No. 5952
(b) Invoicing. We will invoice you for the Fees in the currency set
forth on the applicable Authorization Form. Unless otherwise stated on
the Authorization Form, all undisputed invoices are payable within
thirty (30) days of the invoice date. Any disputed amounts will not
affect payment of non -disputed amounts. You will make payments to
the entity and address set forth in the invoice.
(c) Late Payment. If any undisputed amounts invoiced are not
received by Hootsuite by the due date, then, at our discretion, such
charges may accrue late interest at the lower of: (a) the rate of 12%
per year; or (b) the maximum rate permitted by law from the date such
payment was due until the date paid. In addition, upon thirty (30) days'
written notice to you provided after the due date of any undisputed
amount, we may suspend your access to the Enterprise Services if we
have not received the amounts invoiced in full.
(d) 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 Enterprise Services, which for clarity
does not include any taxes based on Hootsuite's income. If we have
the legal obligation to pay or collect Taxes for which you are
responsible under this Section 7.2(d), 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.
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
12
Vender Agreement No. 5952
we would have received had no such deduction or withholding been
made.
8. Confidentiality, Security & Data Protection.
8.1 Confidential Information. Hootsuite and you may exchange
"Confidential Information" in the course of your negotiation and use
of our Enterprise Services. Hootsuite'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 Hootsuite in the course of our
delivery of Hootsuite Professional 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.
13
Vender Agreement No. 5952
8.2 Enterprise Security Standards. During the Term, we will use
commercially reasonable efforts to maintain the following "Enterprise
Security Standards":
(a) Security Practices. Hootsuite will implement and maintain
security practices as described at ,htt s:Hhoots.iite.,coi /_ a_�,/ eco ri ty-_.
ILatle.
(b) Reports. Upon request no more than once annually,
Hootsuite will provide you with (a) a copy of its most recent security
audit report (which may include summaries of test results or
equivalent measures taken to assess the effectiveness of its control
environment), (b) a summary of its most recent penetration testing
results, or (c) both.
(c) Disaster Recovery and Business Continuity. Hootsuite has
and will maintain a disaster recovery and business continuity plan.
(d) Breach Notification. Hootsuite will notify you within 72 hours
of becoming aware of any unauthorized access to your Hootsuite
account (a "Breach"), will promptly take all necessary steps to
mitigate the Breach, and will provide you with reasonable cooperation
in investigating the Breach (including, on request and to the extent
reasonable, providing you with copies of relevant records, logs, or
other materials).
8.3 Personal Information. If your use of the Enterprise Services
includes the 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 Hootsuite, as set out at 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 (published
at www.hootsufte.cgm/Ie aI/ r y c) for more information on how we
collect and use information relating to the use and performance of our
Enterprise Services.
9. Warranties, Indemnities & Limitations of Liability.
14
Vender Agreement No. 5952
WARRANTIES & DISCLAIMER
9.1 Mutual Warranties. Each of Hootsuite 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 Hootsuite Warranties. Hootsuite warrants that: (a) subject to
an API Change, the functionality of the Enterprise Services will not be
materially decreased during the term of the applicable Authorization
Form or Online Order; (b) to its knowledge, the Enterprise Services do
not contain any malicious code or viruses; and (c) Hootsuite is an
authorized reseller of any Partner Services sold to Customer by
Hootsuite.
9.3 Disclaimer.
(a) EXCEPT AS EXPRESSLY PROVIDED HEREIN, WE OFFER
OUR ENTERPRISE SERVICES "AS IS" AND ARE NOT MAKING,
AND TO THE GREATEST EXTENT PERMITTED BY LAW
EXPRESSLY DISCLAIM, 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, THAT OUR ENTERPRISE SERVICES WILL
MEET YOUR REQUIREMENTS OR THAT OUR ENTERPRISE
SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE,
UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE
OR ERROR -FREE. USE OUR ENTERPRISE SERVICES 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, OR ACTIVITIES OF THIRD
15
Vender Agreement No. 5952
PARTIES, OR ANY CONNECTION TO OR TRANSMISSION FROM
THE INTERNET.
(c) WE ARE NOT RESPONSIBLE FOR AND WILL NOT BE
LIABLE FOR THE CONTENT MADE AVAILABLE THROUGH THE
ENTERPRISE SERVICES, INCLUDING CUSTOMER CONTENT,
MENTIONS, AND ANY CONTENT OR SERVICES PROVIDED BY
THIRD PARTIES. HOOTSUITE DOES NOT CONTROL OR VET
CONTENT AND IS NOT RESPONSIBLE FOR WHAT USERS POST,
TRANSMIT, OR SHARE ON OR THROUGH THE ENTERPRISE
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.
9.4 Indemnification by Hootsuite. Subject to Customer's
compliance with Section 9.6, Hootsuite will defend Customer from and
against any and all third -party claims that the use of the Enterprise
Services as permitted hereunder directly infringes a valid U.S. or
Canada patent or copyright or misappropriates a third party's trade
secret (a "Claim") and will indemnify Customer for any damages
awarded by final non -appealable judgment against, and for
reasonable legal fees incurred by, Customer in connection with any
such Claim.
Hootsuite will have no liability for any Claim to the extent it arises
from:
(i) a modification of the Enterprise Services by or at the direction of
any person other than Hootsuite;
(ii) use of the Enterprise Services in violation of this Agreement or
applicable law;
16
Vender Agreement No. 5952
(iii) use of the Enterprise Services after Hootsuite notifies Customer to
discontinue use because of an infringement or misappropriation claim;
(iv) the combination, operation, or use of the Enterprise Services with
any other software, program, or device not provided or specified by
Hootsuite to the extent such infringement would not have arisen but
for such combination, operation, or use; or
(v) use of the Enterprise Services in a manner that is inconsistent with
their intended use.
For the avoidance of doubt, Hootsuite's indemnification obligations in
this Section 9.4 will not apply to third -party content, open source
software, Social Networks, Partner Services or other Third -Party
Services accessed through the Enterprise Services, or to Customer
Content or Mentions.
If the Enterprise Services or any part thereof have become, or in
Hootsuite's opinion are likely to become, the subject of any Claim,
Hootsuite may at its option and expense:
(1) procure for Customer the right to continue using the Enterprise
Services as set forth hereunder;
(2) replace or modify the Enterprise Services or applicable
functionalities to make them non -infringing; or
(3) if options (1) or (2) are not reasonably practicable, terminate either
or both this Agreement or the Authorization Form or Online Order for
such Enterprise Services and refund to Customer any unearned Fees
that Customer paid in advance for such Enterprise Services.
This Section 9.4 sets forth Hootsuite's sole liability (and Customer's
sole remedy) regarding infringement or misappropriation of third -party
rights.
9.5 Indemnification by Customer. Customer will defend,
indemnify, and hold harmless Hootsuite, its Affiliates, and its or their
directors, officers, employees, agents, shareholders, successors and
17
Vender Agreement No. 5952
assigns from and against all claims, losses, damages, penalties,
liability, and costs, including reasonable legal fees, of any kind or
nature that are incurred in connection with or arising out of a third -
party claim: (a) alleging that Customer Content, Ads Content, or
Submitted Content infringes or violates the intellectual property rights,
privacy rights, or any other rights of a third party or violates any
applicable law; (b) arising from Customer's breach of Section 3.1; or
(c) relating to, or arising from, Customer's use of any Third -Party
Services (including Customer's breach of any terms or conditions
applicable to any Third -Party Services).
9.6 Indemnification Procedure. The indemnified party will: (a) give
written notice of the claim to the indemnifying party promptly and in
any event no later than ten (10) days after the indemnified party
receives the claim; (b) give the indemnifying party sole control of the
defense and settlement of the claim (provided that the indemnifying
party may not enter into any settlement, compromise or consent to
judgment with respect to any claim without the indemnified party's
prior written consent unless such settlement, compromise or consent
to judgment unconditionally releases the indemnified party of all
liability); and (c) provide the indemnifying party with reasonable
cooperation and assistance at the indemnifying party's expense.
LIMITATIONS OF LIABILITY
9.7 Maximum Liability. EXCEPT AS EXPRESSLY PROVIDED IN
SECTIONS 9.7 THROUGH 9.9, AND NOT INCLUDING
CUSTOMER'S OBLIGATION TO PAY ALL FEES OWED TO
HOOTSUITE HEREUNDER, IN NO EVENT WILL EITHER PARTY'S
AGGREGATE LIABILITY TO THE OTHER PARTY FOR ALL CLAIMS
OF ANY KIND, INCLUDING ANY CLAIMS ARISING OUT OF OR
RELATED TO THIS AGREEMENT, WHETHER BY STATUTE,
CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF
LIABILITY, EXCEED THE FEES PAID BY CUSTOMER FOR THE
ENTERPRISE SERVICES SUBJECT TO THE CLAIM DURING THE
THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE
DATE ON WHICH THE CAUSE OF ACTION AROSE. FOR CLARITY,
THE CALCULATION OF EACH PARTY'S LIABILITY UNDER THIS
IN
Vender Agreement No. 5952
SECTION 9.7 EXCLUDES ANY FEES PAID BY CUSTOMER TO A
THIRD PARTY OR FOR ANY PARTNER SERVICES, EVEN WHERE
HOOTSUITE'S ENTERPRISE SERVICES ARE BUNDLED WITH OR
OTHERWISE PROVIDED IN CONJUNCTION WITH PARTNER
SERVICES. THE LIMITATIONS OF LIABILITY IN THIS SECTION 9.7
ALSO APPLY TO OUR AFFILIATES AND THE DIRECTORS,
OFFICERS, EMPLOYEES, AND AGENTS OF HOOTSUITE AND
OUR AFFILIATES (THE "HOOTSUITE PARTIES") AND TO CLAIMS
BROUGHT BASED ON ANY CAUSE OF ACTION, INCLUDING
BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE),
STATUTE OR OTHER LEGAL OR EQUITABLE THEORY.
9.8 Excluded Damages.
(a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, IN NO EVENT WILL EITHER PARTY, ITS 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
ENTERPRISE SERVICES OR ANY OTHER ASPECT OF THIS
AGREEMENT.
(b) The Enterprise Services support multi -factor authentication,
and the Acceptable Use Rules require you to maintain the
confidentiality of your passwords or other login credentials for the
Enterprise Services. ACCORDINGLY, TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL
HOOTSUITE BE LIABLE FOR ANY DAMAGE, LOSS, OR INJURY
RESULTING FROM UNAUTHORIZED ACCESS TO OR USE OF
THE ENTERPRISE SERVICES OR YOUR ACCOUNT OR THE
CONTENT OR INFORMATION CONTAINED THEREIN IF: (A) THE
UNAUTHORIZED ACCESS OR USE COULD HAVE BEEN
PREVENTED THROUGH YOUR USE OF MULTI -FACTOR
AUTHENTICATION; OR (B) YOU OR ANY OF YOUR AUTHORIZED
USERS FAIL TO MAINTAIN THE CONFIDENTIALITY OF ANY
PASSWORD OR OTHER LOGIN CREDENTIALS.
19
Vender Agreement No. 5952
(c) WITHOUT LIMITING SECTION 9.8(b), TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL
HOOTSUITE BE LIABLE FOR ANY DAMAGE, LOSS, OR INJURY
RESULTING FROM UNAUTHORIZED ACCESS TO OR USE OF
THE ENTERPRISE SERVICES OR YOUR ACCOUNT OR THE
CONTENT OR INFORMATION CONTAINED THEREIN, EXCEPT TO
THE EXTENT HOOTSUITE'S BREACH OF THE ENTERPRISE
SECURITY STANDARDS RESULTS IN THE UNAUTHORIZED
DISCLOSURE OF YOUR CONFIDENTIAL INFORMATION.
(d) YOUR EXCLUSIVE REMEDIES FOR ANY INTERRUPTION
OR CESSATION OF ACCESS OR TRANSMISSION TO OR FROM
THE SERVICES ARE SET FORTH IN THE ENTERPRISE SERVICE
LEVEL AGREEMENT.
9.9 Exclusions. NOTHING IN THIS AGREEMENT IS INTENDED
TO EXCLUDE OR RESTRICT OR WILL BE CONSTRUED AS
EXCLUDING OR RESTRICTING THE LIABILITY OF EITHER PARTY
FOR (1) INDEMNIFICATION OBLIGATIONS UNDER THIS
AGREEMENT; (11) DEATH OR BODILY INJURY CAUSED BY THE
NEGLIGENCE OF THAT PARTY, ITS EMPLOYEES, OR ITS
AGENTS; (III) WILLFUL MISCONDUCT OF THAT PARTY OR ITS
EMPLOYEES; OR (IV) ANY LIABILITY THAT CANNOT BE LIMITED
OR EXCLUDED BY APPLICABLE LAW.
9.10 Basis of Bargain. THE ESSENTIAL PURPOSE OF
SECTIONS 9.7 THROUGH 9.9 IS TO ALLOCATE THE RISKS
UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT
THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED
UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN
SUBSTANTIALLY HIGHER IF HOOTSUITE WERE TO ASSUME
ANY FURTHER LIABILITY. THE PARTIES HAVE RELIED ON
THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER
INTO THESE TERMS.
10. General.
Vender Agreement No. 5952
10.1 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 Authorization Forms and Online Orders), without
your consent, to our Affiliate, or in connection with a merger,
acquisition, corporate reorganization, or sale of all or substantially all
of our shares or assets.
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 the Enterprise
Services and may use your name(s) and logo(s) in: (a) Hootsuite's
digital, online, and printed marketing materials (including on our
websites); and (b) external -facing presentations, including to individual
clients and prospects and at trade shows, conferences, and similar
events.
10.4 Force Majeure. Neither party will be liable for any failure to
perform its obligations under this Agreement if that failure results from
any cause beyond such party's reasonable control, including: the
elements; fire; flood; severe weather; earthquake; vandalism;
accidents; sabotage; power failure; denial of service attacks or similar
attacks; Internet failure; acts of God and the public enemy; acts of
war; acts of terrorism; riots; civil or public disturbances; strikes,
lockouts or labor disruptions; and any laws, orders, rules, regulations,
acts or restraints of any government or governmental body or
authority, civil or military, including the orders and judgments of courts.
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 the Hootsuite
21
Vender Agreement No. 5952
website. It is important for you to review this Agreement before using
our Enterprise 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 Enterprise 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 an Authorization Form issued by Hootsuite and signed
by you; or (b) in an agreement signed or otherwise agreed in writing
by both you and Hootsuite.
10.6 Severability. If a court finds part of this Agreement to be
invalid, the rest of the Agreement will continue to apply with the
minimum changes required to remove the invalid part.
10.7 Notices to You. Hootsuite may give notice to you by placing a
banner notice on the Hootsuite platform or Hootsuite's website. We
may also contact you or your Authorized Users through your Hootsuite
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
Enterprise Services or this Agreement.
10.8 Notices to Hootsuite. For any notice to Hootsuite that you
give under or regarding this Agreement, you must notify Hootsuite ,Ib
rnaH with a duplicate copy sent via registered mail to the following
address: Hootsuite Inc., 5 East 8th Avenue, Vancouver, British
Columbia, V5T 1 R6; Attention: Legal Department.
10.9 Waivers. The rights of each Party may be waived only in
writing. No failure to exercise, and no delay in exercising, any right or
remedy under this Agreement will be deemed to be a waiver of that
right or remedy. No waiver of any breach of any provision of this
Agreement will be deemed to be a waiver of any subsequent breach
of that provision or of any similar provision.
22
Vender Agreement No. 5952
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) The laws of the Province of British Columbia and Canadian
law applicable in British Columbia will govern any dispute, cause of
action or claim arising out of this Agreement or your use of our
Enterprise Services, including against any Hootsuite Party
("Dispute"), without giving effect to conflict -of -law principles.
(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 Hootsuite. You will give notice of your
Dispute to us in writing. If we do not decide together on an arbitrator
within fifteen (15) days after we receive that notice, we both agree to
ask the British Columbia International Commercial Arbitration Centre
(BCICAC) to appoint one for us. The arbitration will take place in
Vancouver, British Columbia, under the Arbitration Act (British
Columbia), and will follow the Domestic Commercial Arbitration Rules
of the BCICAC. 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 they think is appropriate and will
have the right to make whatever award they 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. The arbitrator's
award can be entered into the registry of the British Columbia
Supreme Court in Vancouver, British Columbia, and enforced in the
23
Vender Agreement No. 5952
same way as a court order if the court in the enforcing jurisdiction
allows.
(d) Any Dispute resolution proceedings will be conducted only on
an individual basis and not in a class, consolidated or representative
action. Hootsuite and you each waive any right to a trial by jury.
10.12 Export Compliance. You will not use or access our
Enterprise Services if you are located in any jurisdiction in which the
provision of our Enterprise Services is prohibited under Canadian,
U.S. or other applicable laws (a "Prohibited Jurisdiction") and you
will not provide access to our Enterprise Services to any government,
entity or individual located in any Prohibited Jurisdiction. You confirm
that you are not named on any Canadian or U.S. government list of
persons or entities prohibited from transaction with any Canadian or
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 Enterprise Services in violation of any Canadian,
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 Canada and the United States.
10.13 Entire Agreement. This Agreement, including the other
documents referred to as applicable to the Enterprise Services in this
Agreement, is the entire agreement between you and Hootsuite for
your use of our Enterprise 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.
O