Compass Labs, Inc.
CLIQ™ Products and Services Terms & Conditions of Service
Compass Labs, Inc. (“Compass Labs”) owns various proprietary social media advertising, marketing, insight and analytics solutions referred to as CLIQ™ products and services, and offers those products and services on a hosted web services basis. You, the person or entity who has registered to use CLIQ products and services through the Compass Labs Platform (as further defined below, the “Compass Labs Platform”) and agreeing to these Terms and Conditions of Service (“Terms and Conditions”) or the organization or entity that has authorized you to agree to these Terms and Conditions for its benefit (in either case, the “Client”) wish to license access to the Compass Labs Platform in accordance with these Terms and Conditions. These Terms and Conditions, together with any separate written agreement signed by Client and Compass Labs in respect of the Compass Labs Platform that expressly incorporate these Terms and Conditions, such as an ordering form or insertion order (an “Ordering Document”), define the relationship between Compass Labs and Client (each a “party” and together the “parties”), and supersede all prior agreements and understandings between Compass Labs and Client, whether written or oral, relating to the Compass Labs Platform. In the event of a conflict between these Terms and Conditions and an Ordering Document, the terms of the Ordering Document will control.
BY REGISTERING FOR, ACCESSING OR USING THE PLATFORM, THE CLIENT CONFIRMS THAT (1) IF CLIENT IS A PERSON, THEN HE/SHE IS AT LEAST 18 YEARS OLD AND (2) CLIENT WILL ACCESS AND USE THE PLATFORM ONLY WITHIN THE UNITED STATES AND (2) CLIENT HAS READ THESE TERMS AND CONDITIONS AND (4) CLIENT ACCEPTS THESE TERMS AND CONDITIONS AND AGREES TO BE BOUND BY THE AGREEMENT (defined below). If you cannot confirm each of (1) through (4), then you must not accept these Terms and Conditions and may not use the Platform.
1. BINDING ARBITRATION.
ANY CLAIM, DISPUTE OR CONTROVERSY OF WHATEVER NATURE (“CLAIM”) ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION IN ACCORDANCE WITH THE PROCESS DESCRIBED IN SECTION 13 BELOW. PLEASE READ SECTION 13 CAREFULLY.
Table of Contents:
4. Fees and Payment
5. Professional Services
6. Term and Termination
7. Ownership and Rights
8. Specifications and Requirements
10. Limited Warranties and Disclaimers
12. Limitations of Liability
14. Dispute Resolution and Arbitration
17. Limited Remedies
2.1. “Advertiser” means Client’s advertising client with whom Client has a contractual agreement under which Client will provide Advertiser with marketing and advertising services.
2.2. “Agreement” means these Terms and Conditions, together with the Order Form and Ordering Document, as applicable.
2.3. “Applicable Laws” means all laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions or other requirements of any governmental authority in any territory that has jurisdiction over the parties, whether those laws, etc., are in effect as of the Effective Date or later come into effect during the term of the Agreement.
2.4. “Authorized User” means each employee or agent of Client (i) authorized by Client to access and/or use the Compass Labs Platform for Client’s business purposes in accordance with the Agreement; and (ii) to whom a password-protected account for use of the Compass Labs Platform has been created by Client. The maximum number of Authorized Users permitted to access and use the Compass Labs Platform is identified by Client in the Order Form or Ordering Document, as applicable.
2.5. “Compass Labs Platform” means Compass Labs’ social media advertising, marketing, insight and advertising application (including all related software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) and the content therein (other than Content) as made available to Client under the Agreement, and as may be updated by Compass Labs from time to time.
2.6. “Content” means all new information and data input by Authorized Users into the Compass Labs Platform and that is stored in the Compass Labs Platform.
2.7. “Data” means all information and data provided or made available to Client through the Compass Labs Platform, including without limitation Data sourced from third parties.
2.8. “Documentation” means the user guide applicable to the Compass Labs Platform as may be made available by Compass Labs to Client, and as may be modified or updated by Compass Labs from time to time.
2.9. “Effective Date” means the date that the Client first accepts these Terms and Conditions, whether by clicking “I ACCEPT” below, by accessing and using the Platform, or by signing an Ordering Document (if applicable).
2.10. “Fees” means all the fees payable by Client in consideration for its right to use and access the Compass Labs Platform in accordance with the Agreement and as identified in the Order Form or Ordering Document, as applicable.
2.11. “Order Form” means the online order form that Client completed in order to register to use the Compass Labs Platform.
2.12. “Subscription Period” means the term of Client’s subscription to the Compass Labs Platform as identified in the Order Form or Ordering Document, as applicable.
3.1. Compass Labs Platform. Subject to Client’s compliance with the Agreement, Compass Labs hereby grants to Client a nonexclusive, limited, nontransferable right to access and use the Compass Labs Platform in object code only via Compass Labs’ internet hosted web site during the Subscription Period solely to (1) prepare advertising and marketing campaigns and (2) to deliver and execute such campaigns solely and exclusively (a) through the Compass Labs Platform and (b) in accordance with the subscription provisions set forth in the Order Form or Ordering Document, as applicable (“Permitted Purpose”). Such use is permitted solely (i) by Authorized Users and no other users, and in support of the Permitted Purpose, (ii) in strict accordance with the Agreement; (iii) subject to any additional restrictions, if any, as set forth in the Order Form or Ordering Document, as applicable, and (iv) if applicable, in strict accordance with Client’s agreements with its third party publishers and partners (e.g., Facebook, Twitter, LinkedIn, Myspace). Compass Labs hereby grants to Client a nonexclusive, limited, nontransferable right to copy the Documentation to the extent necessary to support the foregoing license.
3.2. Data. Subject to Client’s compliance with the terms of the Agreement, Compass Labs hereby grants to Client a nonexclusive, limited, nontransferable right to view and copy Data in support of the Permitted Purpose. Client has no right to modify Data or to distribute Data to any third parties, including without limitation to consultants, investors, partners affiliates,, and may make only a limited amount of copies of Data as necessary to exercise this license. Client may not sell or otherwise transfer Data for consideration under any circumstances.
3.3. Restrictions. Client shall not use, or allow others to (i) use, the Compass Labs Platform in any manner other than as expressly allowed in the Agreement; (ii) attempt to gain unauthorized access to the Compass Labs Platform or its related systems or networks; (iii) use the Compass Labs Platform or copy any portion thereof or any content thereof, in whole or in part for any purpose except as expressly authorized under the Agreement, including without limitation allowing any distribution or sublicense of the Compass Labs Platform or other access to the Compass Labs Platform by any person or entity that is not an Authorized User, or processing Content through the Compass Labs platform on behalf of third parties or any affiliated entities (except that if Client is an advertising agency and is authorized by Compass Labs in an Ordering Document to use the Compass Labs Platform for the benefit of its merchant or retail clients, then Client may use the Compass Labs Platform for the benefit of its clients as specified on the Ordering Document); or (iv) to make the Compass Labs Platform or Documentation available to third parties in a service bureau arrangement or for any similar commercial time sharing or third party training use. Client shall (a) take all reasonable precautions to prevent unauthorized or improper use of the Compass Labs Platform, (b) not interfere with or disrupt the integrity or performance of Compass Labs Platform, (c) not attempt to gain unauthorized access to Compass Labs Platform or its related systems or networks,(d) not create Internet “links” to the Compass Labs Platform or “frame” or “mirror” any content therein, and (e) not access or use the Compass Labs Platform in order to benchmark the Compass Labs Platform or build a competitive product or service. Client may not access, store, distribute or transmit any material in or through the Compass Labs Platform that: (1) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (2) facilitates illegal activity; (3) depicts sexually explicit images; (4) promotes unlawful violence; (5) is discriminatory based on race, gender, color, religious belief, sexual orientation, disability, or any other illegal activity; or (6) causes damage or injury to any person or property, or any person’s rights of privacy, publicity and/or intellectual property. The rights provided under this Section are granted to the Client only, and shall not be considered granted to any subsidiary or affiliate of the Client, unless expressly permitted by Compass Labs in writing.
3.4. Security. Client shall ensure the security of its account ID, password, and connectivity with the Compass Labs Platform. If any administrative account ID or password is stolen or otherwise compromised, Client shall immediately change the password and inform Compass Labs of the compromise. Client acknowledges that responsibility for all Content, text, information, messages and other material submitted by its users to the Compass Labs Platform lies solely with Client. Client is solely responsible for the integrity and quality of Content, and for maintaining an appropriate backup thereof. Compass Labs may change the authorization method for access to the Compass Labs Platform if it determines in its sole discretion that there are circumstances justifying such changes. Compass Labs is not responsible for loss of data in transmission or improper transmission by Client or its users.
3.5. Content. Without limiting Compass Labs’ obligations under Section 8, Client hereby grants Compass Labs a nonexclusive right to (i) collect and use Content; and (ii) collect and use information regarding Client’s access and use of the Compass Labs Platform (e.g., researched topics, frequency of log in and activity); in both cases solely internally and in order to improve the Compass Labs Platform and Compass Labs products. Compass will not disclose the foregoing to third parties.
3.6. Client Requirements. Client shall maintain a written, up to date list of current Authorized Users and provide such list to the Compass Labs within five (5) days of Compass Labs’ written request from time to time. If Compass Labs requests that Client certify that no password has been provided to any individual who is not an Authorized User, then Client shall, within thirty (30) days of such request, deliver to Compass Labs such certification in a writing signed by an officer.
3.7. Tracking. Compass Labs may require that Client install a tracking pixel which will be programmed by Compass Labs with the intent to track valid conversions. Client is solely responsible for installation and use of any tracking pixel and may not make any modification to such tracking pixel. Compass Labs may base optimizations on the correct placement and firing of this pixel. If the tracking pixel is not properly installed or if any unauthorized modifications are made to it, Client will take full responsibility for the corresponding optimizations. Client must accurately and thoroughly inform all users who participate in Client’s advertising or marketing campaigns delivered through the Compass Labs Platform of all the ways in which such users’ personal information is collected, stored, used and disclosed by or on behalf of Client, and such method of informing users must be in compliance with all Applicable Laws and must reflect the relevant processes of the Compass Labs Platform and the Agreement.
4. Fees and Payment.
4.1. Fees. Client shall pay Compass Labs the Fees as set forth in the Order Form or Ordering Document, as applicable. Compass Labs may change Fees for renewed Subscription Periods upon notice to Client.
4.2. Payment. Fees are paid either in response to monthly invoicing, or automatically by credit or debit card, as specified in the Order Form or Ordering Document, as applicable. For invoiced Fees, Compass Labs will invoice Fees monthly in arrears, and all invoiced amounts are due and payable without set-off upon Client’s receipt of the invoice. For Fees automatically paid by credit or debit card (“Automatic Payments”), Client must provide a payment method at the time of registration, and can access and change its Automatic Payments billing account information and payment method through the Compass Labs billing process. Client permits Compass Labs to use any updated account information regarding Client’s payment method provided by its issuing bank or the applicable payment network. Client must keep its billing account information current at all times. Changes made to Client’s billing account will not affect charges Compass Labs submit to Client’s billing account before it could reasonably act on Client’s changes. By providing Compass Labs with a payment method, Client (i) represents that it is authorized to use the payment method provided, and that all payment information Client provides is true and accurate; (ii) authorizes Compass Labs to charge Client for Fees using Client’s payment method; and (iii) authorizes Compass Labs to charge Client for any paid feature of the Compass Labs Platform that Client registers for while the Agreement is in force. Compass Labs may bill Client (a) in advance; (b) at the time of registration; (c) shortly after registration; or (d) on a recurring basis for subscriptions. Also, Compass Labs may charge Client up to the amount Client has approved, and Compass Labs will notify Client in advance of any change in the amount to be charged for recurring subscriptions. Compass Labs may bill Client at the same time for more than one of its prior billing periods for amounts that Compass Labs has not yet processed.
4.3. Automatic Renewal. Provided that automatic renewals are allowed in Client’s country, province, or state, Compass Labs will inform Client by email before automatically renewing a subscription to the Compass Labs Platform. Once Compass Labs has informed Client that the subscription will be automatically renewed, Compass Labs may automatically renew Client’s subscription and charge Client the then current Fees for the renewal term. Compass Labs will bill Client’s chosen payment method for the renewal Fees, whether it was on file on the renewal date or provided later. Client must terminate its subscription (see Section 5) before the renewal date to avoid being billed for the renewal.
4.4. Online Statement; Errors. Compass Labs will provide Client with an online statement. This is the only billing statement that Compass Labs provides. It is Client’s responsibility to print or save a copy of each online statement and retain such copy for its records. If Compass Labs makes an error on Client’s bill, Client must notify Compass Labs within 120 days after the error first appears on its bill, in which case Compass Labs will investigate the charge. If Client does not notify Compass Labs within that time, Compass Labs will not be required to correct the error or provide a refund. If Compass Labs identifies a billing error, it will correct that error as soon as practical.
4.5. No Refund. Unless otherwise required by law, Fees are non-refundable.
4.6. Late Fees; Taxes. Amounts outstanding beyond thirty (30) days from its due date will be subject to a late payment charge at the lesser of one and one half percent (1.5%) per month or the highest rate permissible under Applicable Law for the actual number of days elapsed. All billing and payment will be in United States dollars only. All fees and payments hereunder are nonrefundable and exclusive of all taxes, including, but not limited to, sales, use, excise, value-added, goods and services, consumption, and other similar taxes or duties (except taxes on the income of Compass Labs), and Client agrees to pay such taxes, whether federal, state or local, or municipal. If Client fails to make payments when due, Compass Labs may, upon notice to Client, suspend Client’s access and use of the Compass Labs Platform until such payments are made. Client will continue to be charged Fees during any period of suspension. Compass Labs may impose a reconnection fee if Client is suspended pursuant to this Section and thereafter requests access to the Compass Labs Platform. Client agrees and acknowledges that Compass Labs has no obligation to retain Content and that such Content may be irretrievably deleted if Client’s account is thirty (30) days or more delinquent.
5. Term and Termination.
5.1. Term. The term of the Agreement will commence on the Effective Date and continue unless and until terminated in accordance with this Section 5.
5.2. Termination. Each party may terminate the Agreement at any time upon thirty (30) days’ notice to the other party; provided, however, that such termination shall not be effective until expiration or termination of each then-current Subscription Period in effect as of the date of such notice. If either party materially breaches any term or condition of the Agreement, and if such breach has not been cured by the breaching party within thirty (30) days after its receipt of notice of such breach, the non-breaching party may immediately terminate the Agreement. Each party may terminate the Agreement immediately upon notice if the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors; or if the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors, and such petition or proceeding is not dismissed within one hundred twenty (120) days of filing.
5.3. Effect of Termination. Upon termination of the Agreement, Client’s right to access or use Data and the Compass Labs Platform shall immediately cease and except as otherwise provided herein, Compass Labs will have no obligation to maintain or forward any Content. Client’s payment obligations, such terms that by their nature must survive, and Sections 5.3, 6, and 8 through 16, inclusive, will survive expiration or termination of the Agreement. Upon any termination of the Agreement, Client shall pay any balance due to Compass Labs pursuant to Section 4. Expiration or termination of the Agreement shall immediately terminate all licenses and access rights granted to Client herein.
6. Ownership and Rights.
6.1. Reservation of Rights. All rights not expressly granted to Client herein are expressly reserved by Compass Labs. As between the parties, the Compass Labs Platform and the Data are and will remain exclusive property of Compass Labs, and Compass Labs will retain ownership of all copyrights, patents, trademarks, trade secrets, know-how, databases, and other intellectual property rights relating to or residing in the Compass Labs Platform and any updates, improvements, modifications and enhancements (including error corrections and enhancements) thereto, the Data, and all derivative works of the foregoing, and Client will have no right, title, or interest in or to the same except as expressly granted in Section 3.1 and Section 3.2. Client hereby assigns to Compass Labs all right, title and interest in and to any and all feedback and suggestions that it and its users provide to Compass Labs regarding the Compass Labs Platform. Nothing in the Agreement will be deemed to grant, by implication, estoppel, or otherwise, a license under any of Compass Labs’ or its licensors’ existing or future rights in or to the Compass Labs Platform or Data except as expressly granted in Section 3.1 and Section 3.2. Compass Labs trade names, trademarks, service marks, titles, and logos, and any goodwill appurtenant thereto, shall be owned exclusively by Compass Labs and shall inure solely to the benefit of Compass Labs. Products acquired for use within or for any United States federal agency are provided with “LIMITED RIGHTS” and “RESTRICTED RIGHTS” as defined in DFARS 252.227-7013 and FAR 52.227-19.
6.2. Violations of Law. Compass Labs may immediately suspend access to or provision of the Compass Labs Platform at any time, without notice to Client and without liability, if Compass Labs suspects or receives notice that the Compass Labs Platform or the use thereof actually or allegedly infringes or violates a third party rights or violates any Applicable Laws. Compass Labs may suspend Client’s and its users’ access to and use of the Compass Labs Platform in order to comply with Applicable Laws, or upon having reason to believe that any improper activity or potential damage to Compass Labs products or services or other customers is associated with Client’s or its users’ use of or access to the Compass Labs Platform.
7. Specifications and Requirements.
7.1. Platform Requirements. As between the parties, Client is responsible for obtaining and maintaining all computer hardware, software, communications and office equipment needed to access and use the Compass Labs Platform, and for paying all associated third-party access charges.
7.2. Changes to the Compass Labs Platform. Compass Labs may make upgrades and improvements to the Compass Labs Platform available to Client from time to time. Compass Labs may modify or delete any features of the Compass Labs Platform. Compass Labs may, at any time, modify the Compass Labs Platform, or substitute old features with new features that have similar or improved functionality, as may be necessary to meet Applicable Laws or industry-standard requirements or demands or requirements of third party service providers.
8.1. Confidential Information. Each party acknowledges and understands that, except as set forth in Section 8.3, any and all technical, trade secret, or business information, including, without limitation, financial information, business or marketing strategies or plans, product development or customer information, and the Compass Labs Platform, which is disclosed to the other or is otherwise obtained by the other, its affiliates, employees, representatives or other agents during the term of the Agreement (the "Confidential Information") is confidential and proprietary, constitutes trade secrets of the owner, and is of great value and importance to the success of the owner's business. Data constitutes Compass Labs’ Confidential Information. Content constitutes Client’s Confidential Information.
8.2. Obligations. Both parties shall maintain as confidential and shall not disclose (except for those employees, attorneys, accountants and other advisors, agents or authorized users of the recipient and its affiliates on a need-to-know basis and who have in turn been advised of the confidentiality obligation hereunder), copy, or use for purposes other than in connection with use of the Compass Labs Platform as authorized hereunder, the other party’s Confidential Information. Each party agrees to protect the other party’s Confidential Information with the same degree of care a prudent person would exercise to protect its own confidential information and to prevent the unauthorized, negligent, or inadvertent use, disclosure, or publication thereof. Each party shall be liable under the Agreement to the other for any use or disclosure in violation of the Agreement by its employees, attorneys, accountants, or other advisors, agents or authorized users. Each party agrees to comply with its obligations under applicable privacy laws, to the extent applicable, and to cooperate with the other party at such party’s request in the fulfillment of any such obligations.
8.3. Exceptions. The parties shall have no obligation hereunder with respect to any information that is (i) already known to the receiving party at the time of the disclosure; (ii) publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of the receiving party; or (iii) subsequently disclosed to the receiving party on a non-confidential basis by a third party not having a confidential relationship with the disclosing party and which third party rightfully acquired such information. A disclosure of Confidential Information shall not be a violation of this provision if it is legally compelled to be disclosed pursuant to a subpoena, summons, order or other judicial or governmental process, provided the disclosing party provides prompt notice of any such subpoena, order, etc. to the other party so that such party will have the opportunity to obtain a protective order.
8.4. Residuals. Notwithstanding anything herein to the contrary, but without limiting Compass Labs’ obligations under this Section 8, Compass Labs is free to use for any purpose the Residuals resulting from access to or work with Client information, data and content (including without limitation Content), where “Residuals” means information in non-tangible form that may be retained in the unaided memory by persons who have had access to such information, data and content so long as such persons have not studied the information for the purpose of replicating the same from memory. Compass Labs shall not have any obligation to pay royalties for any work resulting from the use of Residuals.
9. Limited Warranties and Disclaimers.
9.1. Mutual Warranties. Each party warrants to the other party that (i) such party has the right to enter into the Agreement and perform its obligations hereunder in the manner contemplated by the Agreement; and (ii) the Agreement does not conflict with any other agreement entered into by such party.
9.2. Client Warranties. Client represents, warrants and covenants that (i) Client will comply with all Applicable Laws with respect to its and its users’ access and use of the Compass Labs Platform; and (ii) Client has received all third party consents, licenses, permissions and certifications necessary for the transmission of Content to the Compass Labs Platform.
9.3. Disclaimers. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPASS LABS PLATFORM AND ALL PRODUCTS, SERVICES, DATA AND INFORMATION DELIVERED, GENERATED OR MADE AVAILABLE BY OR ON BEHALF OF COMPASS LABS TO CLIENT IS MADE AVAILABLE TO CLIENT “AS IS” AND WITHOUT ANY WARRANTY, AND COMPASS LABS EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE COMPASS LABS PLATFORM AND ANY INFORMATION, MATERIALS AND SERVICES PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. COMPASS LABS DOES NOT REPRESENT OR WARRANT THAT THE COMPASS LABS PLATFORM OR ANY ASSOCIATED SERVICES WILL BE AVAILABLE, ERROR FREE, COMPLETELY SECURE, VIRUS FREE, OR WITHOUT INTERRUPTION, OR THAT THEIR FUNCTIONS WILL MEET ANY PARTICULAR REQUIREMENTS, OR THAT PROGRAM DEFECTS OR ERRORS ARE CAPABLE OF CORRECTION OR IMPROVEMENT. THE COMPASS LABS PLATFORM MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS AND COMPASS LABS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. Client acknowledges that Compass Labs is not responsible for the integrity of data and information, including without limitation, Content, including completeness, accuracy, validity, authorization for use and integrity over time, and Compass Labs shall not be responsible for any loss, damage or liability arising out of the Content, including any mistakes contained in the Content or the use or transmission of the Content.
10.1. By Compass Labs. Compass Labs, at its own expense, shall: (i) defend, or at its option settle, any claim, suit or proceeding brought by a third party against the Client and its Affiliates and its and their licensors, suppliers, officers directors, employees and agents alleging that the Compass Labs Platform (other than Content) infringes an existing United States copyright or trademark; and (ii) pay any final and non-appealable judgment entered or settlement against Client thereon; provided, however, that Compass Labs shall not be responsible for any compromise or settlement made without its prior consent. If the Compass Labs Platform is or may become the subject of such a claim, Compass Labs may, at its option: (1) modify or replace the affected parts so the Compass Labs Platform become non-infringing or (2) if the foregoing cannot reasonably be accomplished, terminate the Agreement and refund Client for any prepaid fees. Compass Labs shall have no obligation with respect to any infringement claim based upon Client’s or its users’ combination, operation or use of the Compass Labs Platform with non-Compass Labs information or services if the infringement claim would have been avoided had such combination, operation or use not occurred. Where infringement claims arise with respect to third party products, Compass Labs’ sole obligation is to pass through to Client any indemnity that may be available to Correspondent under the terms and conditions of the agreement between Compass Labs and such third party Compass Labs. THIS SECTION STATES THE ENTIRE LIABILITY OF COMPASS LABS FOR ANY INFRINGEMENT INVOLVING THE COMPASS LABS PLATFORM.
10.2. By Client. Client, at its own expense will, if instructed by Compass Labs, defend, and in any event indemnify and hold harmless Compass Labs and its Affiliates and its and their licensors, suppliers, officers directors, employees and agents, from and against any and all third party claims arising out of or incurred as a result of: (i) any breach of the Agreement by Client and/or its users; (ii) Client’s and its users’ use of the Compass Labs Platform or any component thereof; and/or (iii) Content; provided, however, that Client shall not be obligated to indemnify the Compass Labs entities to the extent the claim is caused by Compass Labs’ gross negligence or willful misconduct. If Compass Labs instructs Client to defend such claim, Client shall pay any judgment entered or settlement against Compass Labs thereon,
10.3. Process. Each party’s indemnification obligation under this Section is conditional upon: (a) the indemnified party giving the indemnifying party prompt notice upon becoming aware the claim; (b) the indemnified party giving the indemnifying party the right to solely control and direct the investigation, preparation, defense and settlement of the claim; and (c) the indemnified party fully cooperates with the indemnifying party, at the indemnifying party’s expense, in such defense and settlement. The indemnified party shall have the right, at its cost, to employ counsel of its choice to participate in the defense of such claim.
11. Limitations of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPASS LABS WILL NOT BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY LOSS OF USE, LOSS OF DATA, LOSS OF BUSINESS, COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES OR LOSS OF PROFIT OR REVENUE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE COMPASS LABS PLATFORM AND ANY SERVICES RENDERED HEREUNDER (HOWEVER ARISING, INCLUDING NEGLIGENCE), EVEN IF COMPASS LABS IS OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPASS LABS’ TOTAL CUMULATIVE LIABILITY TO CLIENT IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE FEES (DEFINED IN SECTION 2.10) ACTUALLY PAID BY CLIENT TO COMPASS LABS DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING ANY SUCH LIABILITY.
12. General. The Agreement and all rights and obligations hereunder are not assignable or transferable by Client without the prior written consent of Compass Labs, and any attempt to do so shall be void; provided, however, that Client may, upon Compass Labs’ prior written consent, which shall not be unreasonably withheld, assign the Agreement in its entirety to a Client Affiliate or to a successor entity in the event of a merger, acquisition of assets or shares, or other change in control. Except with respect to the obligation of payment, neither party will be in default or otherwise liable for any delay in or failure of its performance under the Agreement if such delay or failure arises by any reason beyond its reasonable control. Client and Compass Labs are independent contractors and nothing in the Agreement will be deemed to create any agency, employee-??employer relationship, partnership, or joint venture between the parties. Neither party will have or represent that such party has the right, power or authority to bind, contract or commit the other party or to create any obligation on behalf of the other party. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining provisions of the Agreement will not be affected or impaired thereby and the illegal, invalid, or unenforceable provision will be deemed modified such that it is legal, valid, and enforceable and accomplishes the intention of the parties to the fullest extent possible. The failure of either party to enforce any provision of the Agreement, unless waived in writing by such party in writing, will not constitute a waiver of that party’s right to enforce that provision or any other provision of the Agreement. This Agreement is made and entered into for the sole protection and benefit of the parties hereto, and no other person or entity shall be a direct or indirect beneficiary of, or shall have any direct or indirect cause of action or claim in connection with the Agreement. The enumeration herein of specific remedies shall not be exclusive of any other remedies. Any delay or failure by any party to the Agreement to exercise any right, power, remedy or privilege herein contained, or now or hereafter existing under any applicable statute or law, shall not be construed to be a waiver of such right, power, remedy or privilege, nor to limit the exercise of such right, power, remedy, or privilege, nor shall it preclude the further exercise thereof or the exercise of any other right, power, remedy or privilege. Compass Labs may assign the Agreement, in whole or in part, at any time without notice.
13. DISPUTE RESOLUTION AND ARBITRATION
13.1. General. This Section applies to any dispute except for disputes relating to the enforcement or validity of our intellectual property rights. The term “Dispute” means any dispute, action, or other controversy between the parties concerning the Agreement and will be given the broadest possible meaning allowable under law. In the event of a dispute, the disputing party notify must the other a Notice of Dispute, which is a written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the Dispute, and the relief requested. Compass Labs will send any Notice of Dispute to Client by U.S. Mail to Client’s address if Compass Labs has it, or otherwise to Client’s email address. Client and Compass Labs will attempt to resolve Disputes through informal negotiation within sixty (60) days from the date the Notice of Dispute is sent. After sixty (60) days, either Client or Compass Labs may commence arbitration. Client may also litigate any Dispute in small claims court in Santa Clara County, California.
13.2. Binding arbitration. If Client and Compass Labs do not resolve a Dispute by informal negotiation or in small claims court, any other effort to resolve the Dispute will be conducted exclusively by binding arbitration as described in this Section. Instead, all Disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the Federal Arbitration Act. Any court with jurisdiction over the parties may enforce the arbitrator’s award.
13.3. Class action waiver. Any proceedings to resolve or litigate any Dispute in any forum will be conducted solely on an individual basis. Neither Client nor Compass Labs will seek to have any dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings. If this waiver is found to be illegal or unenforceable as to all or some parts of a Dispute, then it won't apply to those parts. Instead, those parts will be severed and proceed in a court of law, with the remaining parts proceeding in arbitration.
13.4. Arbitration procedure. Any arbitration will be conducted by the American Arbitration Association (the “AAA”) under its Commercial Arbitration Rules, to be held only in Santa Clara County, California. The arbitrator may award the same damages to Client individually as a court could. The arbitrator may award declaratory or injunctive relief only to Client individually, and only to the extent required to satisfy Client’s individual claim. The Agreement governs to the extent it conflicts with the AAA’s Commercial Arbitration Rules. The arbitrator may award compensatory damages, but shall NOT be authorized to award non-economic damages, such as for emotional distress, or pain and suffering or punitive or indirect, incidental or consequential damages. Each party shall bear its own attorneys’ fees, cost and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the arbitrator and AAA; however, the arbitrator may award to the prevailing party reimbursement of its reasonable attorneys’ fees and costs and/or the fees and costs of the arbitrator. Within fifteen (15) calendar days after conclusion of the arbitration, the arbitrator shall issue a written award and a written statement of decision describing the material factual findings and conclusions on which the award is based, including the calculation of any damages awarded. Judgment on the award may be entered by any court of competent jurisdiction. By agreeing to this binding arbitration provision, Client understands that it is waiving certain rights and protections which may otherwise be available if a claim or Dispute were determined by litigation in court, including, without limitation, the right to a jury trial, certain rights of appeal, the right bring a claim as a class member in any purported class or representative proceeding, and the right to invoke formal rules of procedure and evidence.
13.5. Claims or disputes must be filed within one year. To the extent permitted by applicable law, any claim or Dispute under the Agreement must be filed within one year from the date of the cause of action, or be permanently barred.
13.6. Equitable Relief. Client agrees that Compass Labs would be irreparably damaged if the Agreement is not specifically enforced. Therefore, in addition to any other remedy Compass Labs may have at law, and notwithstanding our agreement to arbitrate Disputes, Compass Labs is entitled without bond, other security, or proof of damages, to seek appropriate equitable remedies with respect to Client’s violation of the Agreement in any court of competent jurisdiction.
14. Notices. Client consents to providing Client with notices hereunder via email to the address that Client specified when registering for the Compass Labs Platform. Notices emailed to Client will be deemed given and received when the email is sent. All notices and consents required or permitted under the Agreement must be in writing; must be personally delivered or sent by registered or certified mail (postage prepaid), by overnight courier, or by facsimile (receipt confirmed), or by email as permitted above, and will be effective upon receipt. Notices to Compass Labs should be sent to Compass Labs, Inc., 4320 Stevens Creek Blvd, Suite 120, San Jose, California 95129, Attn: Chief Financial Officer. Email notices to Compass Labs shall not suffice under this Section. Each party may change its address for receipt of notices by giving notice of the new address to the other party.
15. Publicity. Client hereby grants to Compass Labs the right to use Client’s name and logo on the Compass Labs web site and in Compass Labs’ collateral marketing materials relating to the Services, provided that Client has approved in writing in advance the form of any such use, such approval not to be unreasonably withheld. Upon such approval, Client agrees to allow Compass Labs to use Client’ name and logo (in such form as provided by Client to Compass Labs for such purpose) solely as a reference, current customer or user of the Compass Labs Platform in Compass Labs marketing materials.
16. LIMITED REMEDIES. WITHOUT LIMITING ANYTHING IN THE AGREEMENT, IT IS UNDERSTOOD AND AGREED BY THE PARTIES THAT EACH AND EVERY PROVISION OF THE AGREEMENT WHICH PROVIDES LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES (A) ARE A FUNDAMENTAL PART OF THE BASIS OF COMPASS LABS’ BARGAIN HEREUNDER, AND COMPASS LABS WOULD NOT ENTER INTO THE AGREEMENT ABSENT SUCH LIMITATIONS, DISCLAIMERS AND EXCLUSIONS, AND (B) ARE INTENDED BY THE PARTIES TO BE ENFORCEABLE TO THE MAXIMUM ALLOWED BY APPLICABLE LAW, SEVERABLE AND INDEPENDENT OF ANY OTHER SUCH PROVISION AND TO BE ENFORCED AS SUCH. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN EFFECT TO THE MAXIMUM ALLOWED BY APPLICABLE LAW.
A printed version of the Agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to the Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
Please print these Terms for Client’s records.
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