Terms and Conditions:
SCOPE OF WORK
Browser Extension and Web Applications:
Custom Social possesses a data and information processing and analysis platform for performance marketing, marketing analytics, data aggregation, audience discovery, social media audience targeting and related functionality (collectively, together with any associated technology and services of Custom Social as well as any modifications, updates, upgrades or successors to any of the foregoing, the “Custom Social Tools”).
User hereby allows Custom Social access to advertising accounts (for example, Google Analytics or Facebook Ads Manager) for the purpose of gathering and analyzing data in order to provide advertising targeting, audiences or consumer segments for advertising on websites, social media platforms and other digital properties, “Sites” or “Platforms”.
SERVICES; FURTHER ASSURANCES, CREATIVE
Custom Social does not place ads. Users are responsible for all creative, posting and images.
Custom Social provides advertising targeting, audiences or consumer segments for advertising and will publish this data directly to an advertising platform, account or website in the form specific to that platform. For example as an “ad set” for Facebook ads manager. The placement of the ads, allocation of media spend and performance is solely the responsibility of the User and as part of the use of Custom Social Tools. Custom Social shall not have any duties or responsibilities to the User except those expressly set forth herein, nor shall Custom Social deemed to have any fiduciary relationship with the User.
User is solely responsible for any posting, creative or image used for advertising.The User takes responsibility that User owns all User Content, both digital and content rights, and is legally allowed to use the User Content to advertise on Sites and Platforms.
THE USER DATA SUBMISSION AND LICENSE
Custom Social access to Data; Data belongs to the User:
In connection with this Agreement, the User will submit, upload and/or otherwise provide to Custom Social certain data and information (collectively, the “User Data”) as specified in the Agreement and/or otherwise actually submitted, uploaded or provided by the User to Custom Social, for use and processing by Custom Social internally with its Custom Social Platform. The User will provide the User Data or Customer Social will access user Data via the Tools or other means, form and or format reasonably specified by Custom Social, through the API, electronic file transfer address or other means and mechanism specified by Custom Social. Custom Social through it’s tools will continue to access User data during the term of this agreement.
All User data will remain the property of the User and will be accessible at all times to the user in their own advertising accounts, such as Facebook ads manager.
All User data will not be shared in aggregate or specifically with other users. However, the data is used to make our AI smarter, thereby helping all users.
At the termination of this agreement and Custom Social tools no longer have access to the advertising account, the flow of data will stop and Custom Social will no longer have access to the User data in any form except in the aggregate and as defined below
The User hereby grants to Custom Social a nonexclusive, perpetual license to access, use and process the User Data internally with or through the Custom Social Platform, which includes, without limitation the right to analyze, parse, copy, store, combine and aggregate the User Data as well as the right to use the User Data to discover, create, author and generate insights, analytics, trends, marketing targets, audience segments, and similar results and output and to improve, train, develop, modify, maintain and operate the Custom Social Platform. For the avoidance of doubt, the foregoing license does not permit Custom Social to distribute, transfer, sell, rent, lease, loan, resell, license, or sublicense the User Data to any third party, except that, if applicable, Custom Social can provide the User Data to contractors and service the User’s (including without limitation cloud services or computer server the User’s), under conditions of confidentiality, solely for purposes of supporting Custom Social’s permitted uses of such The User Data hereunder and not for such third party’s own purposes.
The User’s Data Responsibilities:
DATA SECURITY AND CONFIDENTIALITY
Disclosure, Confidential Information:
Each party understands that the other party may need to disclose certain non-public or proprietary information relating to the disclosing party’s business or technology that is marked or identified as “confidential” at the time of disclosure, or that is described in this Agreement as confidential, or that a reasonable person would infer from its nature, content, or manner of disclosure is confidential or proprietary (“Confidential Information”). The User’s Confidential Information includes all The User Data and Custom Social’s Confidential Information includes any non-public aspects of the Custom Social Platform as well as any outputs or results (including without limitation any audience segments) discovered, generated or created with or through the use of the Custom Social Platform hereunder. The receiving party agrees to take reasonable precautions to protect and maintain the confidentiality of the Confidential Information of disclosing party obtained or received in connection with this Agreement. The receiving party agrees not to use such Confidential Information of the disclosing party for any purpose except to perform its obligations or exercise its rights under this Agreement or as otherwise expressly authorized in this Agreement or by the disclosing party in writing. The receiving party also agrees not disclose (without the disclosing party’s prior written authorization) to any third person any such Confidential Information of disclosing party, other than on a need to know basis to the receiving party’s employees, consultants and service the User’s who are subject to confidentiality obligations that are at least as protective of the disclosing party’s Confidential Information as the confidentiality provisions of this Agreement). Notwithstanding any of the foregoing to the contrary, Confidential Information does not include any information that the receiving party can show: (1) through no fault or breach of the receiving party, is or becomes generally available to the public, or (2) was in its possession or was known to it prior to receipt from the disclosing party, or (3) was rightfully disclosed to it without restriction by a third party, or (4) was independently developed by such receiving party without use of or reference to any Confidential Information of the disclosing party. The receiving party may disclose Confidential Information if the disclosure is necessary to comply with a valid court order or subpoena or other legal requirement, in which case the receiving party will, unless prohibited by law or legal process, promptly notify the disclosing party and cooperate with the disclosing party if the disclosing party chooses to contest the disclosure requirement, seek confidential treatment of the information to be disclosed, or to limit the nature or scope of the information to be disclosed.
Custom Social will maintain (and will require its third party service the User’s to maintain) reasonable administrative, physical, and technical safeguards for the protection of the security and confidentiality of the User Data, in accordance with applicable industry standards. In the event Custom Social becomes aware of any unauthorized use or disclosure of The User Data in its possession or control, Custom Social shall promptly notify The User thereof. Custom Social shall comply with all applicable laws and regulations in connection with its performance under this Agreement, provided that Custom Social shall not be in breach of the foregoing to the extent its failure to comply is due to a breach by The User of this Agreement.
We are committed to upholding the highest standards possible regarding the social media environments, communities and societies in which we operate. While we are not responsible for the content of business, personal or any post, page, or comment, etc. we do uphold the policies of our partners: Facebook, Google, Tik-Tok, Snap, and any and other social media platform.
Paying Custom Social:
User agrees to pay Custom Social based on the terms of this agreement. Custom Social is in no way responsible for any payments due by the User to Sites or Platforms or required to make such payments in any manner or time frame unless agreed to in this agreement. Payment or non-payment of Sites, Platforms or other required fees related to the placing of User’s ads on Sites and Platforms has no bearing on any payments due to Custom Social by the User and agreed to in this agreement. Custom Social assumes no responsibility for paying income taxes on User’s behalf. User assumes complete and sole responsibility for any taxes owed or which may be due in connection with placing advertising on behalf of the User under the Agreement, including but not limited to sales and use taxes, and you agree to indemnify and hold Custom Social and its employees harmless from any such taxes.
The User paying on time is an important part of this Agreement. Custom Social requires payment prior to service and on-going payment to continue service, and may in its sole discretion restrict or end this agreement if payment is late. Users will pay Custom Social costs and expenses, including any and all attorneys’ fees, that Custom Social incurs trying to collect payment from User.
TERM AND TERMINATION
This Agreement shall commence on the date of the Agreement and continue until terminated by the parties as provided herein (the “Term”). This Agreement may be terminated by either party upon two (2) days’ prior written (including email) notice to the other party. Termination of this Agreement shall not relieve either party from payment obligations arising prior to such termination.
Custom Social Owns it’s technology; User owns it’s data:
Custom Social shall own (and shall have unfettered rights to use and retain) all worldwide right, title and interest in and to the Custom Social Platform, together with any modifications, improvements, developments, updates or enhancements to the Custom Social Platform, as well as Custom Social’s other technology and intellectual property, including without limitation any insights, analytics, trends, marketing targets, audience segments, performance metrics and similar results and output discovered, created, developed, authored or generated by Custom Social or the Custom Social Platform in connection with this Agreement or otherwise (collectively, all of the foregoing being the “Custom Social IP”). The User shall own (and shall have unfettered rights to use and retain) all worldwide right, title and interest in and to the User Data. This Agreement does not convey any proprietary interest in or to any Custom Social IP or any User Data or rights of entitlement to the use thereof except as expressly set forth herein. Neither Party grants any rights or licenses hereunder in or to any of its intellectual property or technology, by implication, estoppel or otherwise, except as expressly provided for in this Agreement.
a) Trademarks. Subject to the terms of this Agreement, User hereby grants to Custom Social a non-exclusive, non-transferrable, non-sublicense able, worldwide, royalty-free license to use User’s trademarks, trade names and logos (the “User Marks'') and the User Content for rendering the services described hereunder. User agrees to the use of the User Marks in Custom Social presentations, marketing materials, Customer lists and web listings of Customers. User grants no other rights than are expressly granted hereunder, and Custom Social acknowledges User’s exclusive ownership of the User Marks and User Content. Custom Social agrees not to take any action inconsistent with such ownership. Users may terminate, in whole or in part, the Custom Social license granted under this Section 9(a) if, in User’s sole discretion, such use does not meet such party’s then-current trademark usage policy or similar policies.
Custom Social shall have no liability for any claims, losses, or damage caused by errors or omissions in any data or information provided to Custom Social by User or any actions taken by Custom Social specifically at User’s direction. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT, THE CUSTOM SOCIAL PLATFORM OR ANY User DATA. EACH PARTY HEREBY DISCLAIMS ANY AND ALL IMPLIED REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PRIOR COURSE OF DEALING. OR USAGE OF TRADE.
User shall indemnify, defend and hold harmless Custom Social and its directors, officers, employees, consultants, agents or assigns (collectively “Custom Social Indemnities”) from and against any and all claims, actions, suits or proceedings (“Claims”) brought by a third party against any Custom Social Indemnities and any directly resulting losses, liabilities, damages, expenses and costs, including, without limitation, reasonable fees for attorneys, which Claims arise out of a breach by User of this Agreement. If Custom Social seeks indemnification under the Agreement, Custom Social shall give User: (i) reasonably prompt written notice of the relevant Claim; provided, however, that failure to provide such notice shall not relieve User from its liability or obligation under the Agreement except to the extent User is prejudiced as a result of such failure, and (ii) reasonable cooperation and assistance in connection with the defense of such Claim, at User’s expense. User shall have the right to control the defense and settlement of any such Claim; provided, however, that Custom Social shall have the right to participate in the defense at its own expense and to approve any settlement of any Claim in advance, such approval not to be unreasonably withheld.
Limitation of Liability TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW (BUT WITHOUT LIMITING A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7), NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.. EXCEPT FOR THE OBLIGATION TO PAY FOR ANY AMOUNTS THAT ARE PROPERLY DUE AND PAYABLE HEREUNDER AND EXCEPT WITH RESPECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7, NEITHER PARTY’S TOTAL AGGREGATE LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT SHALL EXCEED THE GREATER OF (A) $50,000 OR (B) THE TOTAL AMOUNTS PAID BY CUSTOM SOCIAL TO User HEREUNDER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE THE LIABILITY FIRST AROSE.
13.1. The parties are independent contractors, and no branch or agency, partnership, association, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this Agreement. This Agreement is intended for the sole and exclusive benefit of the parties and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.
13.2. This Agreement is governed by and construed in accordance with the laws of the State of California, as if performed wholly within the state and without giving effect to the principles of conflict of law. Except as expressly provided below, any action, dispute, claim or controversy arising under or in connection with this Agreement will be resolved exclusively by arbitration administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures (the “Rules”) then in effect. The arbitration will take place in San Francisco, California, and will be decided by a single arbitrator chosen by mutual agreement of the parties (or otherwise pursuant to the Rules). The decision of the arbitrator will be final and binding on the parties and may be enforced in any court of competent jurisdiction. The prevailing party will be entitled to reasonable attorneys’ fees and costs. However, if the arbitrator determines a party to be the prevailing party under circumstances where the prevailing party won on some but not all of the claims and counterclaims, the arbitrator may award the prevailing party an appropriate percentage of the costs and legal fees reasonably incurred by the prevailing party in connection with the arbitration. The arbitration will be kept confidential except as required by law. Notwithstanding the foregoing, nothing herein shall preclude parties from seeking provisional remedies (such as temporary or preliminary injunctive relief) in aid of arbitration from a court of appropriate jurisdiction. The parties hereby consent to personal jurisdiction and venue in the federal or state courts located in San Francisco, California.
13.3. Neither party may assign this Agreement, in whole or in part, without the other party’s prior written consent. Notwithstanding the foregoing, either party may assign this Agreement to a successor without consent in connection with the merger, acquisition, reorganization or sale of such party or all or substantially all of the assets of such party to which this Agreement relates. Any attempt to assign this Agreement other than as permitted above will be null and void.
13.4. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of events beyond the reasonable control of such party, which may include without limitation strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations affected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
13.5. All notices required or permitted under this Agreement will be in writing and delivered by confirmed email transmission, by courier or express delivery services, or by certified mail, and in each instance will be deemed given upon receipt. All communications will be sent to the addresses set forth in the Order Form or to such other addresses as may be specified by either party to the other in accordance with this Section.
13.6. This Agreement constitutes the complete and exclusive understanding and agreement between the parties regarding the subject matter hereof and supersedes all prior or contemporaneous agreements or understandings, written or oral, with respect to this subject matter. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both parties. No failure or delay in enforcing or exercising any right, remedy or provision of this Agreement shall constitute a waiver thereof. If any portion of this Agreement is found to be void, invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect. The Order Form and/or this Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.