These Terms of Service are the terms and conditions on which EdgeTheory, LLC, a Mississippi limited liability company (“EdgeTheory”), will provide, and each and every party (the “Client”) will accept, Services (as defined below) from EdgeTheory.
1. Scope of Services.
1.1 EdgeTheory shall provide to the Client social branding and social conversation marketing services as set forth in the written proposal, agreement and/or statement of work from EdgeTheory to the Client and accepted and agreed to by the Client (the “Services”). In the event that the Client chose a plan for services previously offered on EdgeTheory’s website or otherwise accepted a proposal from EdgeTheory that has otherwise expired or was not in writing, but the Client continues to accept and pay for such services, then such services shall be considered the applicable Services under these Terms of Service.
1.2 The proposal, agreement, statement of work and/or plan for services referred to in Section 1.1 and setting forth the Services to the Client shall be referred to herein as the “Statement of Work”. These Terms of Service are incorporated into and made a part of each Statement of Work and all Services provided by EdgeTheory. Each Statement of Work together with these Terms of Service represent the complete agreement between EdgeTheory and the Client, and such agreement is referred to herein as the “Agreement”. Unless otherwise specifically provided in the Statement of Work as overriding these Terms of Service, in the event of any conflict between the Terms of Service and the Statement of Work, these Terms of Service shall control.
1.3 The Statement of Work includes (a) the Services to be provided, and (b) the media personas and accounts (the “Personas”) and the media channels (the “Channels”) to be used by EdgeTheory to provide the Services. The Statement of Work also includes the fees owed by the Client and the payment schedule for such Services and any applicable performance schedule.
1.4 The Client may request from time to time increases in the Services, including, without limitation, the number of Persona and/or Channels used for the Client. EdgeTheory shall provide the Client with a written proposal for such changes, including the changes in Services and the price for such additional Services. Upon acceptance by the Client, such approved changes shall be considered as amendments to the Statement of Work and subject to these Terms of Service.
2. Term and Termination.
2.1 The Agreement shall continue in effect for the initial term set forth in the Statement of Work, and if no such initial term is provided, then for an initial term of one (1) year and shall continue thereafter for successive renewal periods of one (1) year each, unless or until either party provides written notice of intent to terminate the Agreement at least sixty (60) days in advance of any such renewal period. In addition, EdgeTheory may terminate the Agreement at any time following the expiration of the initial term of the Agreement upon sixty (60) days prior written notice to the Client.
2.2 Either party may terminate the Agreement if the other party fails to perform in any material respect any obligation of such party under the Agreement and the defaulting party fails to cure such material default within five (5) days of receipt of notice for a payment default and within thirty (30) days of receipt of such notice for any default other than a payment default; provided, however that if such material default is not of a nature that is capable of cure within such time, if the breaching party has commenced diligent, good faith efforts to cure such default immediately after receipt of notice of such default and continues to pursue such cure continuously, the cure period shall be extended to sixty (60) days. There shall be no such extension for payment defaults by the Client.
2.3 A party will be deemed in immediate default under the Agreement if such party becomes or is declared insolvent or bankrupt, is the subject of any proceedings relating to its liquidation or insolvency or the appointment of a receive, conservator, or similar officer, is unable to pay its debts as they become due, makes an assignment to or for the benefit of its creditors, or ceases to conduct business for any reason on an ongoing basis leaving no successor in interest.
2.4 EdgeTheory shall be entitled to payment with respect to Services performed and expenses incurred up to the effective date of the termination of the Agreement. In the event that the Client is more than forty-five (45) days past due with respect to any fees and expenses due EdgeTheory under the Agreement, EdgeTheory may cease providing services to the Client without any prior notice. In addition, in the event that EdgeTheory terminates the Agreement as a result of a default by the Client, whether a payment default or otherwise, upon demand by EdgeTheory the Client shall pay to EdgeTheory all of the fees due or to becomes due under the Agreement and all outstanding Statements of Work through the remainder of the unexpired term of the Agreement. This remedy shall be in addition to all other rights and remedies provided hereunder.
3. Payment and Invoicing.
3.1 The Client will pay for the Services as set forth in the Statement of Work, and unless otherwise provided in the Statement of Work, such payments shall be made monthly and in advance of such Services.
3.2 In the event that the Statement of Work provides for payment via credit card or bank account debit, the Client agrees to provide to EdgeTheory valid, up-to-date and complete credit and bank account details, and the Client authorizes EdgeTheory to bill such credit card or debit such account for the fees provided in the Statement of Work. A two percent (2%) transaction fee will be charged for credit card charges and bank account drafts that are rejected at the time of charge or draft and which must be resubmitted.
3.3 In the event that the Statement of Work fails to provide for payment via credit card, bank account debit or otherwise, EdgeTheory shall provide to the Client invoices for the Services. The Client shall pay EdgeTheory’s invoices within thirty (30) days from the date of the invoice.
3.4 EdgeTheory may charge a late fee/finance charge at one and one-half percent (1 ½%) per month (annual percentage rate of eighteen percent (18%)) or the maximum legal interest rate, whichever is lower, on all amounts which remain unpaid for thirty (30) days from the date of the invoice or from the date of the rejection of any credit card charge or bank draft, as applicable.
3.5 The Client agrees to pay all necessary collection costs of amounts past due, including reasonable attorney’s fees and costs. The Client shall remain responsible for the payment of all applicable federal or state sales or use taxes, or related levies, attributable to the Services rendered under the Agreement.
4. Relationship of Parties; Client Responsibilities.
4.1 EdgeTheory and the Client agree that the relationship between them is that of independent contractor and that neither party shall have any authority to represent or bind the other and that neither party shall hold itself out or have any authority as an agent of the other for any purpose whatsoever. Nothing herein shall be construed as creating a principal and agent, joint venture, or any other type of relationship besides independent contractor between the Client and EdgeTheory.
4.2 The Client acknowledges and agrees that it must provide reasonable cooperation, including access to information about the Client and its business, as well as availability of knowledgeable personnel, in order for Company to be able to perform the Services in a timely and professional manner. If any delay in delivery of the Services occurs as a result of failure or untimely performance by the Client (each such occurrence a “Client Delay”), the Client agrees that it shall be responsible for any increase in cost or expense incurred by EdgeTheory caused by a Client Delay and shall pay all costs in connection with such Client Delay. EdgeTheory shall not incur any liability to Client as a result of any Client Delay.
4.3 The Client acknowledges and agrees that the Client shall be solely responsible for the all information, data and other material provided to EdgeTheory by the Client for use as content for the Services, including the accuracy thereof and the right to use such as content for the Services.
4.4 In the event that the Client inputs any social conversations, messages or other content in online media in connection with and/or as part of the Services, the Client shall do so in compliance with all applicable laws, rules and regulations, and EdgeTheory may immediately disable access to any applicable portion of the Services necessary to protect against a breach of this provision by the Client.
4.5 EdgeTheory shall assign an Account Manager to the Client. The Client will review the Services with EdgeTheory’s designated Account Manager as from time to time requested by the Account Manager, and shall provide reasonable assistance to the Account Manager with respect to strategy, analysis and implementation of the Services.
4.6 The Client shall be responsible for maintaining the confidentiality of all login details provided to the Client to access for any portion of the EdgeTheory system and data (including for drop-off of suggestions or monitoring of social conversations), and for any activities that occur in the use thereof. The Client agrees that the Client shall not provide access to the EdgeTheory system and/or data to any other party. EdgeTheory may immediately disable access to any applicable portion of EdgeTheory’s system and/or data necessary to protect against a breach of this provision by the Client.
5. Non-Hire Covenants.
5.1 Without EdgeTheory’s written consent, during the term of the Agreement and for one (1) year thereafter and except through EdgeTheory, the Client shall refrain from soliciting, hiring, diverting or accepting services or work from any person who at any time provided services through or on behalf of EdgeTheory except where the parties have otherwise agreed in writing or upon the payment of a fee to EdgeTheory equal to two (2) years’ annual compensation of the person in question.
5.2 Without the Client’s explicit written consent during the term of the Agreement and for one (1) year thereafter, EdgeTheory shall refrain from soliciting, hiring or in any way diverting the services of any employee of the Client, the identity of which EdgeTheory learned or discovered in the performance of Services under the Agreement.
6. Warranties.
6.1 EdgeTheory warrants and represents that the Services provided under the Agreement shall be delivered in a workmanlike manner and in keeping with the standards prevalent in the industry.
6.2 The Client shall promptly notify EdgeTheory of a breach of the warranty stated above, and EdgeTheory shall promptly investigate the matter, and if substantial evidence of a breach appears, then EdgeTheory shall in its sole discretion either (i) remedy the defect complained of until the performance meets the warranty standard stated above, and/or (ii) refund or credit to the Client the fees attributable to the extent of the defective Services.
6.3 EdgeTheory excludes and disclaims all other warranties whatsoever not specifically stated above, whether express, implied or statutory, including any warranty of non-infringement, merchantability or fitness for particular purpose.
6.4 Neither party shall be liable to the other whatsoever for any special, consequential, indirect, exemplary or punitive damages, including any damages on account of lost profits, loss of goodwill, loss or corruption of data, lost opportunity or similar losses, whether or not placed on notice of any such alleged damages and regardless of the form of action in which such damages may be sought.
6.5 Notwithstanding anything to the contrary in no event shall EdgeTheory be liable to the client under the agreement for any damages in excess of the fees actually paid to EdgeTheory by the client during the six (6) month period immediately preceding the alleged breach or action. the fees and billings due under this agreement are not considered special damages or lost profits and shall not be limited by these provisions.
7. Indemnification.
7.1 EdgeTheory agrees to indemnify, defend and hold harmless the Client from and against all claims, demands, suits and expenses (including reasonable attorneys’ fees) brought by any third person or party for damages arising from the negligent or illegal act or omission of EdgeTheory or any of its employees and contractors in the performance of Services under the Agreement, except to the extent of the negligent or illegal act or omission of the Client or its employees and contractors or breach of the terms of the Agreement by Client.
7.2 The Client agrees to indemnify, defend and hold harmless EdgeTheory from and against all claims, demands, suits and expenses (including reasonable attorneys’ fees) brought by any third person or party for damages arising from the negligent or illegal act or omission of the Client or any of its employees and contractors in connection with the Agreement and the Client’s obligations under the Agreement, except to the extent of the negligent or illegal act or omission of EdgeTheory or its employees and contractors or breach of the terms of the Agreement by EdgeTheory.
7.3 The foregoing indemnities shall be contingent upon the following: The party to be indemnified (the “Indemnified Party”) shall (i) give prompt written notice to the party from which indemnification is sought (the “Indemnifying Party”) of any such claim, demand, or action for which indemnification is sought; (2) fully cooperate in the defense or settlement of any such claim, demand, or action; and ; and (3) grant the Indemnifying Party sole control over the defense and settlement of such claim, demand or action provided the Indemnifying Party obtain the prior written consent of the Indemnified Party to any settlement or proposal of settlement (which consent shall not unreasonably be withheld).
7.4 Notwithstanding anything to the contrary provided in this Section 7, EdgeTheory’s indemnification obligations shall not exceed the amounts covered by EdgeTheory’s liability insurance and the deductibles, if any, related thereto.
8. Proprietary Rights.
8.1 The Client acknowledges and agrees that EdgeTheory owns all software, code, processes, conversation and data maps and graphs, phrase templates, plans, databases and know-how used and/or enhanced to provide the Services to the Client, as well as all social conversations, messages and content (in whatever form) created, enhanced and/or inputted through any Persona and/or through any Channel by EdgeTheory for the Client. In addition, the Client agrees that EdgeTheory owns (i) all Personas used by EdgeTheory for the Client (except for Personas containing the Client’s specific name and/or owned and used by the Client prior to the commencement of the Services (the “Client’s Persona”)), and (ii) the right of use for all Channels used to provide Services to the Client (all of the property and property rights referred to in this Section as belonging to EdgeTheory being hereinafter referred to as “EdgeTheory’s Property”). Upon payment in full of all fees and charges due from the Client to EdgeTheory pursuant to the Agreement, EdgeTheory grants to the Client a non-exclusive, paid- up, royalty-free, world-wide license to use the social conversations and other content created by EdgeTheory specifically for the Client. Nothing contained in the Agreement shall prevent EdgeTheory from providing services for others using all or any proportion of EdgeTheory’s Property (whether or not also used for the Client), and the mental impressions from performing the Services under the Agreement, so long as such services do not infringe upon the Client’s property rights described in the next Section or disclose any confidential information of the Client.
8.2 EdgeTheory acknowledges and agrees that any specific social conversations and other content (in whatever form) and other data and materials provided by the Client for use, input and/or enhancement by EdgeTheory and specifically marked as property of the Client, together with all logos, trademarks, services marks, and trade and business names and all Client Personas provided by the Client for use by EdgeTheory in connection with the Services, shall remain property of the Client and the Client provides to EdgeTheory a non-exclusive, paid- up, royalty-free, world-wide license to use such on behalf of the Client and during the term of the Agreement.
9. Compliance with Laws.
The parties agree that they each will comply with all applicable federal, state or local laws and ordinances and that neither of them will discriminate against any employees or contractors of the other on the basis of race, color, religion, national origin, sex, age, disability, status as a disabled veteran or veteran of the Vietnam Era, or any other basis prohibited by law.
10. Confidentiality.
10.1 The parties agree that the specific terms, conditions and rates set forth in the Agreement shall be maintained as confidential and not disclosed to any third party or competitor of either party. EdgeTheory may disclose that EdgeTheory is providing services for the Client and may use the Client’s name, logo and related trademarks in EdgeTheory’s marketing materials for the purpose of highlighting the Client’s use of EdgeTheory’s services, and the Client grants to EdgeTheory such rights as are necessary to do so.
10.2 Each party will treat as confidential and not disclose to any third party or use for its own behalf any of the other party’s proprietary or confidential information which such party obtains hereunder or in connection herewith. Each party shall use the same degree of care in protecting the other party’s proprietary or confidential information as such party uses in protecting its own proprietary or confidential information. Promptly upon termination or cancellation of the Agreement, each party will discontinue its use of any of the other party’s proprietary or confidential information and, if requested by the other party, return the same to the other party, together with all copies, portions and other documents containing, in whole or part, such proprietary or confidential information. If such information is publicly available, is already in the receiving party’s possession or known to the receiving party, is rightfully obtained by the receiving party from a third party, or is independently developed by the receiving party, the receiving party shall bear no responsibility for its disclosure, inadvertent or otherwise.
10.3 The parties may disclose the terms of the Agreement and divulge any confidential information when necessary to comply with the legal order, subpoena, requirement for process of a governmental agency or court of competent jurisdiction, but shall endeavor to provide to the party with reasonable notice and an opportunity to secure any protective order or limit on disclosure at the party’s own sole expense.
11. Force Majeure.
EdgeTheory shall not be liable to the Client for any delays, inability to perform or interruption of service due to acts or events beyond its reasonable control, including, without limitation Acts of God, governmental acts, war, strikes, loss or interruption of computer systems, telecommunication breakdowns and failure internet and other third party providers. The Client acknowledges that the provision of the Services is dependent upon access to various third party services (including, without limitation, the Internet, Facebook, Twitter, Pinterest and Tumblr), and that EdgeTheory is not responsible for the inability to provide all or any portion of the Services caused by failure or disruption of any such third party services or any bugs or errors contained in any such third party services.
12. Notices.
All notices, requests, demands, consents or other communications given in connection with the Agreement shall be in writing, shall be sent by registered or certified mail, return receipt requested, postage prepaid, or by hand delivery or expedited delivery service, with delivery charges prepaid and with acknowledged receipt of delivery, shall be deemed given on the date of acceptance or refusal of acceptance shown on such mail or hand delivery receipt, and shall be addressed to the applicable party at the addresses shown in the Statement of Work.
13. Authority.
Each party represents and warrants to the other party that it has all necessary power and authority to enter into and perform the Agreement in accordance with the terms hereof.
14. Assignment.
Neither party shall assign any of its rights or obligations under the Agreement without the prior written consent of the other party, which consent shall not unreasonably be withheld. The only exception is that the Agreement may unilaterally be assigned by either party to an affiliate, successor or assign in a change of corporate control that does not materially affect the duties of the other party hereunder. The Agreement is entered into solely for the benefit of the parties hereto, and nothing in the Agreement whether express or implied is intended to confer any rights or remedies on any other person or party other than the parties hereto and their respective successors and assigns
15. Waivers.
No waiver of any provision of the Agreement shall be effective unless it is in writing, signed by the party against whom it is asserted, and any such written waiver shall only be applicable to the specific instance to which it relates and shall not be deemed to be a continuing or further waiver. Notwithstanding the foregoing, in order to maintain flexibility with its Clients, EdgeTheory may amend these Terms of Service at any time. EdgeTheory will post a copy of the amended Terms of Service on its website at www.EdgeTheory.necom. The amended Terms of Service shall be effective thirty (30) days following the posting thereof. In the event that any such amendment materially changes the terms of the Agreement, the Client may terminate the Agreement by providing thirty (30) days prior written notice to EdgeTheory which is given within three (3) months from the posting thereof at www.edgetheory.com.
16. Severability and Remedies.
Each provision herein shall be separate and independent from any other, and a breach of any provision shall in no way or manner discharge or relieve the performance of any other provision, covenant or agreement. In the event of a breach of the Agreement by the Client, in addition to the rights and remedies provide hereunder, EdgeTheory shall have all rights and remedies available at law and/or in equity.
17. Survival.
The parties’ obligations under the Agreement which by their nature continue beyond termination, cancellation or expiration of the Agreement, shall survive termination, cancellation or expiration of this Agreement.
18. Headings.
Caption and article headings contained in the Agreement are for convenience and reference only and in no way define, describe, extend or limit the scope or intent of the Agreement nor the intent of any provision thereof.
19. Governing Law, Jurisdiction and Attorney’s Fees.
The Agreement shall be governed by and interpreted and enforced in accordance with the laws of the State of Mississippi. The Client hereby irrevocably consents (i) to the jurisdiction of the Courts of Madison County, Mississippi, and of any Federal Court located in the Southern District of Mississippi, Jackson Division, and agrees that venue in each of such Courts is proper in connection with any action or proceeding arising out of or relating to the Agreement, and (ii) to the service of process by certified mail, return receipt requested. Nothing herein shall affect the right of any party to serve process in any other manner permitted by law or to commence legal proceedings or otherwise proceed against any party in any such jurisdiction. If either party elects to enforce the terms and conditions of the Agreement in any arbitration, litigation or otherwise, the prevailing party shall be entitled to recover its reasonable attorney’s fees and costs, including those incurred on appeal, as determined by the arbitrator or court.
20. Entire Agreement.
These Terms of Service and the Statement of Work contain and represent the entire Agreement between the parties and supersede any prior understandings or agreements whether written or oral between the parties respecting the subject matter herein. The Agreement may only be amended in a writing specifically referencing this provision and executed by both parties. The Agreement shall insure to the benefit of and shall be binding upon the parties hereto and their respective heirs, personal representatives, successors and assigns, subject to the limitations contained herein. The unenforceability, invalidity or illegality of any provision of the Agreement shall not render any other provision unenforceable and shall be subject to reformation to the extent possible to best express the original intent of the parties. The Agreement does not confer any rights on any person or party (other than the parties to the Agreement and, where applicable, their successors and permitted assigns) pursuant to any applicable law or provision.
