Clients Terms of Service
THESE TERMS AND CONDITIONS (“AGREEMENT”) GOVERNS YOUR ACQUISITION AND/OR USE OF SVERVE, INC.'S ("Sverve") SERVICE PURSUANT TO A DOCUMENT(S) FOR PLACING ORDERS HEREUNDER THAT ARE ENTERED INTO BETWEEN YOU AND SVERVE OR ANY OF SVERVE'S AFFILIATES FROM TIME TO TIME, INCLUDING ADDENDA AND SUPPLEMENTS THERETO, (AN "ORDER FORM"). ORDER FORMS SHALL BE DEEMED INCORPORATED HEREIN BY REFERENCE.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" OR "CUSTOMER" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.
Customer may not access the Service if Customer is Sverve's direct competitor, except with Sverve's prior written consent. In addition, Customer may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
(a) Subscription. Customer may order a subscription to Sverve's "Service" (meaning the products and services that are ordered by Customer under an Order Form and made available by Sverve online via the customer login link at http://www.sverve.com and/or other web pages designated by Sverve, including associated offline components, as described in any Sverve user guide) and which "Users" (meaning individuals who are authorized by Customer to use the Service, for whom subscriptions to a Service have been ordered, and who have been supplied user identifications and passwords by Customer (or by Sverve at Customer's request)). Users may include but are not limited to Customer's employees, consultants, contractors and agents, and third parties with which Customer transacts business. Unless otherwise specified in the applicable order, (i) the Service is purchased as a User subscription and may be accessed by no more than the specified number of Users, (ii) additional User subscriptions may be added during the applicable subscription term at the same pricing as that for the pre-existing subscriptions thereunder, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and (iii) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated Users only and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Service. Customer agrees that Customer's purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Sverve regarding future functionality or features. Sverve shall: (i) provide Sverve's basic support for the Service to Customer at no additional charge, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, except for: (1) planned downtime (of which Sverve shall give at least 8 hours notice via the Service and which Sverve shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Friday to 3:00 a.m. Monday Eastern Time), or (2) any unavailability caused by circumstances beyond Sverve's reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Sverve's employees), Internet service provider failures or delays, or denial of service attacks, and (iii) provide the Service only in accordance with applicable laws and government regulations.
(b) Customer Responsibilities. Customer shall (i) be responsible for Users’ compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of Customer Content and of the means by which Customer acquired Customer Content, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Service, and notify Sverve promptly of any such unauthorized access or use, and (iv) use the Service only in accordance with any Sverve user guide for the Service and applicable laws and government regulations. Customer shall not (a) make the Service available to anyone other than Users, (b) sell, resell, rent or lease the Service, (c) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Service to store or transmit malicious code, (e) interfere with or disrupt the integrity or performance of the Service or third-party data contained therein, or (f) attempt to gain unauthorized access to the Service or its related systems and/or networks. Customer will conduct any campaigns through Sverve and the Service using the highest industry standards which meet or surpass all local, State and Federal laws for advertising. Sverve makes no warranties with regards to reviewing any provided Customer Content (as defined below) ahead of time and therefore cannot be held responsible if any portion may be deemed illegal. Customer also warrants that it’s social media networks and/or website, or any social media network and/or website as provided for campaigns through this Agreement shall not contain, or contain links to, improper or illegal content. Sverve reserves the right to reject any campaigns, or URL link embodied within a campaign at any time. Campaigns are accepted upon the representation that Customer has the right to publish the Customer Content of the campaign, without infringing any rights of third parties. Customer agrees to indemnify and hold Sverve and Sverve’s employees, consultants, subcontractors and affiliates (collectively “Representatives”) harmless against any and all expenses and losses of any kind (including reasonable attorney’s fees and costs) incurred by Sverve or its Representatives in connection with any claim of any kind arising out of publication of a campaign (including, without limitation, any claim of trademark, any proprietary right or copyright infringement, libel, defamation, breach of confidentiality, false or deceptive advertising or sales practices) and/or any material of Customer’s to which users can link through a campaign. To the extent applicable, any campaign shall be subject to Sverve's standard terms and conditions for rules governing a campaign.
2. Fees and Expenses
In consideration for use of the Service, and subject to its receipt of an invoice, Customer will pay Sverve the fees set forth in an Order Form. Except as otherwise set forth hereunder, all fees hereunder shall be noncancellable and nonrefundable. Except as otherwise specified in an Order Form, (i) fees are based on services purchased and not actual usage, and (ii) to the extent applicable, the number of User subscriptions purchased under the Service cannot be decreased during the relevant subscription term stated on an Order Form. User subscription fees under the Service are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for User subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term. With respect to any campaign, unless otherwise agreed to by the parties in an Order Form, all fees are due before the start of a campaign. Customer shall receive a credit equivalent to any such prepayment amount. The fees owing by Customer hereunder under a campaign will be taken down monthly against the prepaid fees for such campaign, after which point additional pre-paid fees will be due for such campaign. Any unexpended pre-paid fees after the completion of a campaign will, upon the written request of Customer, be returned to Customer within ten (10) business days of Customer's request. In the event that the parties agree that fees will be due on a monthly basis, such fees will be due no later than thirty (30) days after the date of Sverve's invoice. Outstanding payments not paid to Sverve by the due date on the Sverve invoice will automatically cause the Service and/or any campaign to be placed on hold or redirected at Sverve’s sole discretion. Further, a pre-pay by Customer will be required to restart the Service and/or campaign. Unless otherwise stated, Sverve's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). Customer is responsible for paying all Taxes associated with Customer's purchases hereunder. If Sverve has the legal obligation to pay or collect Taxes for which Customer is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Sverve with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Sverve is solely responsible for taxes assessable against it based on Sverve's income, property and employees. All fees not paid by the due date are subject to an additional charge of 1.5% per month or the highest amount allowed by law, whichever is lower. Sverve shall be entitled to recover all reasonable costs of collection (including agency fees, attorneys’ fees, expenses and costs) incurred in attempting to collect payment from Customer. In accordance with its expense reimbursement policy, Customer will reimburse Sverve for reasonable and documented expenses, but only to the extent that they are reasonable and pre-approved. In addition to any expenses, Customer shall be solely responsible for the payment of any and all influencer fees associated with any of Customer's campaigns.
3. Intellectual Property
(a) Customer Content. Customer is responsible for providing certain information and materials, including text, narrative, images, photos, graphs, videos, designs, logos, trademarks, data or other information, to the Service (all collectively “Customer Content”). Subject to the terms and conditions of this Agreement, Customer is solely responsible for managing the Customer Content in conjunction with the Service. Sverve shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Content. Sverve shall not (a) modify Customer Content, (b) disclose Customer Content except as compelled by law or as expressly permitted in writing by Customer, or (c) access Customer Content except to provide the Service and prevent or address technical problems, or at Customer's request in connection with customer support matters. Subject to the limited rights granted by Customer hereunder, Sverve acquires no right, title or interest from Customer or Customer's licensors under this Agreement in or to Customer Content, including any intellectual property rights therein.
(b) Sverve IP. “Sverve IP” means (i) General Knowledge, (ii) Sverve’s Confidential Information, methodologies, concepts, techniques, templates and other materials and intellectual property (collectively, Materials”) owned or used by Sverve prior to the effective date of this Agreement, or owned, licensed, acquired or used initially by Sverve outside the scope of this Agreement, as well as all improvements or enhancements to such Materials, and (iii) any posts or other content created by social media influencers contracted by Sverve to promote any Customer campaign ("Influencer Content"). “General Knowledge” means general knowledge, skills, experience, templates and materials (including ideas, concepts, know-how and techniques) that relate to the business of Sverve. Subject to the limited rights expressly granted hereunder, Sverve reserves all rights, title and interest in and to the Service and/or all Sverve IP, including all derivatives, enhancements and/or modifications thereto and/or related intellectual property rights therein. No rights are granted to Customer hereunder other than as expressly set forth herein. Sverve hereby grants to Customer a non-exclusive, worldwide royalty-free right and license to use, reproduce, distribute, publish and display Influencer Content only in conjunction with a Customer campaign under the Service, provided that Customer shall not remove any copyright or proprietary rights notice attached to or included in any Influencer Content and shall reproduce all such notices on any copies of Influencer Content. Under no circumstances shall Customer circumvent the Service, attempt to circumvent the Service, or permit any other party to circumvent the Service, in any manner or form whatsoever, in order to work directly with any influencers applying for work on any campaign through Sverve and/or the Service, without the prior written consent of Sverve.
(c) Restrictions on the Service. Customer shall not (i) permit any third party to access the Service except as permitted herein or in an Order Form entered into between Sverve and Customer, (ii) create derivate works based on the Service except as authorized herein, (iii) copy, frame or mirror any part or content of the Service, other than copying or framing on Customer's own intranets or otherwise for Customer's own internal business purposes, (iv) reverse engineer the Service, or (v) access the Service in order to (1) build a competitive product or service, or (2) copy any features, functions or graphics of the Service.
(d) Customer Applications and Code. If Customer, a third party acting on Customer's behalf, or a User creates applications or program code using the Service, Customer authorizes Sverve to host, copy, transmit, display and adapt such applications and program code, solely as necessary for Sverve to provide the Service in accordance with this Agreement. Subject to the above, Sverve acquires no right, title or interest from Customer or Customer's licensors under this Agreement in or to such applications or program code, including any intellectual property rights therein.
(e) Suggestions. Sverve shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the operation of the Service.
(f) Federal Government End Use Provisions. Sverve provides the Service, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Service include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Sverve to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
Sverve represents and warrants that, to Sverve's actual knowledge, the Service will not infringe the copyright of any third party. Customer’s sole and exclusive remedy for a breach of this warranty shall be as set forth under Section 8(a).
5. Warranty Disclaimers
EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, THE SERVICE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND AND SVERVE DISCLAIMS ALL IMPLIED OR STATUTORY WARRANTIES INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT OR FROM A COURSE OF DEALING, PERORMANCE OR USAGE OF TRADE.
6. Disclaimer of Indirect Damages
EXCEPT FOR SECTIONS 1(B) AND 3 AND/OR EXCEPT WITH RESPECT TO OBLIGATIONS OF CONFIDENTIALITY AND/OR OBLIGATIONS OF INDEMNIFICATION HEREUNDER, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF DATA, INTERRUPTION OF SERVICE, OR LOSS OF BUSINESS OR BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT WILL SVERVE BE LIABLE FOR THE PROCUREMENT OF SUBSTITUTE SERVICES.
7. Limitations on Liability
SVERVE’S MAXIMUM AGGREGATE LIABILITY IN CONNECTION WITH THE SERVICE AND/OR THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT OF FEES RECEIVED BY SVERVE FROM CUSTOMER, UNDER THE PERTINENT ORDER FORM GIVING RISE TO A CLAIM, DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE FIRST DATE ON WHICH THE LIABILITY AROSE. SVERVE SHALL NOT BE LIABLE FOR ANY OF CUSTOMER CONTENT, NOR THE CONTENTS OF ANY CAMPAIGN, SOCIAL MEDIA NETWORKS, WEB SITES OR WEB PAGES.
(a) Sverve Indemnity. Sverve will indemnify, defend and hold Customer harmless from and against any and all losses, damages, liability, costs and expenses awarded by a court or agreed upon in settlement, as well as all reasonable and related attorneys’ fees and court costs, (collectively “Losses”) arising out of any third party claim alleging that the Service infringes any United States copyright, patent or trade secret. This section will not apply if the alleged claim arises from (i) a use or modification of the Service by Customer or (ii) any Customer breach of this Agreement (any of the foregoing circumstances collectively referred to as a “Customer Indemnity Responsibility”).
(b) Customer Indemnity. Customer will indemnify, defend and hold harmless Sverve from and against any and all Losses arising out of any third party claim arising out of any Customer Indemnity Responsibility.
(c) Indemnification Process. The foregoing indemnification obligations are conditioned on the indemnified party: (i) notifying the indemnifying party promptly in writing of such action, (ii) reasonably cooperating and assisting in such defence and (iii) giving sole control of the defence and any related settlement negotiations to the indemnifying party with the understanding that the indemnifying party may not settle any claim in a manner that admits guilt or otherwise prejudices the indemnified party, without consent of the indemnified party.
(d) Infringement. If the Service is, or in Sverve’s opinion, is likely to become, the subject of any infringement- related claim, then Sverve will, at its expense and in its discretion: (a) procure for Customer the right to continue using the Service; (b) replace or modify the Service so that it becomes non-infringing or (c) terminate any license in the Service and give Customer a refund for any fee paid for such infringing Service. THE PROVISIONS OF THIS SECTION STATE SVERVE’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDIES FOR ANY CLAIM THAT THE SERVICE INFRINGES A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHT.
9. Term and Termination
(a) Term and Renewal. This Agreement commences on the date set forth in the applicable Order Form for the Service and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated. User subscriptions purchased by Customer under the Service commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all User subscriptions under the Service shall automatically renew for additional periods equal to the expiring subscription term, unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless Sverve has given Customer written notice of a pricing increase at least 60 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.
(b) Termination for Material Breach. Either party will have the right to terminate this Agreement in the event that the other party fails to cure a material breach of the Agreement within 15 days of any written notice of such breach.
(c) Survival. The provisions of this Agreement that by their nature should survive termination will survive termination, including Sections 1(b), 2, 3 and Sections 5 through 14.
(d) Effect of Termination. Upon any termination for any reason, Customer shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve Customer of the obligation to pay any fees payable to Sverve hereunder. Upon request by Customer made within 30 days after the effective date of termination of a Service subscription, Sverve will make available to Customer for download a file of Customer Content. After such 30-day period, Sverve shall have no obligation to maintain or provide any of Customer's Customer Content and shall thereafter, unless legally prohibited, delete all of Customer Content in Sverve systems or otherwise in Sverve's possession or under Sverve's control.
(a) “Confidential Information” means Sverve IP, the Service and any proprietary information, trade secrets, release dates, strategy, roadmaps, marketing, finances or other business information (and including the terms of this Agreement) disclosed by one party to the other either directly or indirectly in writing, orally or by designs or drawings. Confidential Information does not include information which (i) is known to the recipient at the time of disclosure; (ii) has become publicly known and made generally available through no wrongful act of the recipient or (iii) has been rightfully received by recipient from a third party authorized to make the
(b) Except as otherwise provided herein, the recipient will not use the Confidential Information of the disclosing party for any purpose whatsoever (other than its performance under this Agreement). Further recipient will protect the Confidential Information from disclosure to third parties using the same manner of protection that it uses to protect its Confidential Information of a like nature, but in no event less than reasonable care. Each recipient may disclose Confidential Information pursuant to a valid order of any governmental authority, provided that the recipient has given the disclosing party prompt notice prior to making such disclosure so that the recipient may seek a protective order or other appropriate remedy. Except as otherwise authorized by the disclosing party in writing, the recipient will limit access to Confidential Information of the disclosing party only to those of its and its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the recipient containing protections no less stringent than those herein for the protection of Confidential Information. The recipient shall be responsible for any use or disclosure of Confidential Information by any of its employees, contractors and/or agents. Neither party shall disclose the terms of this Agreement to any third party other than its legal counsel and accountants without the other party’s prior written consent. Recipient shall not decompile, disassemble or reverse engineer any Confidential Information of the disclosing party.
11. Governing Law
This Agreement will be construed and enforced in accordance with the laws of the State of New York without regard to the principles of conflicts of law. Any and all disputes, arising under or in any concerning this Agreement will be adjudicated in the state or federal courts, located in New York, New York. Both parties consent to the sole and exclusive jurisdiction of, and venue, in such courts.
This Agreement is the entire agreement of the parties and supersedes any prior agreements between them, whether written or oral, with respect to the subject matter hereof. No waiver, alteration, or modification of any of the provisions of this Agreement will be binding unless in writing and signed by duly authorized representatives of the parties. Neither party may assign or transfer this Agreement or any of its rights or obligations hereunder without the prior, written approval of the other party, except that either party may assign or transfer this Agreement to any subsidiary or affiliated company or by merger, or acquisition or in connection with a sale of all or substantially all of its assets. In the event of any conflict between the terms of this Agreement and any Order Form, the terms in this Agreement will prevail unless the conflicting provision is noted as conflicting and initialed by an authorized representative of each party. In such a case, the conflicting provision will control for that Order Form only and will not serve to modify the Agreement. Any notice must be addressed to a party at the address shown on an Order Form or such other address as either party may notify the other of and will be deemed given upon delivery if personally delivered, or 48 hours after deposited in the United States mail, postage prepaid, registered or certified mail, return receipt requested. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
13. Export Compliance
The Service, other technology Sverve makes available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Customer shall not permit Users to access or use the Service in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
Customer has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Sverve's employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify Sverve's Legal Department.
Should you have any questions concerning this Agreement, please write: Sverve, Inc., 349 5th Ave, New York, NY 10016; Attn: Legal.
349 5th Ave,
New York, NY 10016