Software As a Service (SaaS) Agreement

Customer Terms and Conditions 

This Software as a Service (SaaS) Agreement – Customer Terms and Conditions governs the use of the Onclusive Media Monitoring Service and together with the terms set forth in an Onclusive order form (each, an “Order Form”) constitute the complete agreement (“Agreement”) between Onclusive, Inc. (“Onclusive”) and the customer specified in the Order Form (“Customer”).  The Agreement is effective as of the date of the Order Form. By signing an Order Form, or accessing or using any Onclusive Service, Customer signifies that Customer has read, understood and agrees to be bound by the terms of this Agreement.

In consideration of the mutual covenants and conditions contained in this Agreement, the parties agree as follows:

  1. Definitions. As used in this Agreement, the capitalized terms listed below shall have the following meanings:

Capitalized terms not defined herein shall have the meanings ascribed to them in the Order Form.

2.1 Provision of Service. Onclusive shall provide Customer with (a) access to and use of the Service during the Term with respect to the quantities, individual services and other order details set forth on the Order Form, and (b) Enhancements and Maintenance Modifications as they become generally available to Onclusive’s customers.

2.2 License. Subject to the terms and conditions of this Agreement, Onclusive grants Customer the non-exclusive, non-transferable, non-sublicensable license, during the Term set forth in the Order From, to use: (a) the Service for its intended purpose, in accordance with the Documentation; and (b) the Documentation in conjunction with Customer’s use of the Service.

2.3 Associated Entity Access.  If Customer wishes for an Associated Entity to have the right to access and use the Service, it must provide names and contact information for each individual User to Onclusive.  These Users will be required to acknowledge a set of basic terms at such time as the login credentials are provided to them.

2.4       Support. Onclusive will provide access to self-service support documentation and videos whenever a User is logged into the platform. In order to (i) answer questions regarding use of the Service, (ii) help Customer with diagnosis and fixing of problems, and (iii) allow Customer to file bug reports and communicate generally with Onclusive, Onclusive shall provide User with web-based communication and support. Onclusive’s email support address is: mediamonitoringsupport@onclusive.com.  If a system failure should occur that creates an outage of the Service, Onclusive will utilize all reasonable means to end the outage as soon as possible.  Outages due to the Internet, hosting providers and/or Customer systems are outside the control of Onclusive.  In such an event, Onclusive will use commercially reasonable efforts to assist the Customer in the diagnosis of these problems but may not be able to resolve the problem. From time to time, Onclusive or its hosting providers will perform preventative maintenance, such as updating servers and routers with security patches, and software upgrades.  Onclusive will keep any resulting downtime reasonable and shall use all reasonable efforts to perform such maintenance outside of normal working hours. 

3.   Limitations

3.1 User Authorizations.  Except for Associated Entities who have been authorized by Customer to access the Service, Customer may not allow any third party to (a) rent, loan or sublicense rights to access and/or use the Service; (b) unlock, modify, disassemble, decompile, reverse engineer, or run any third-party software other than approved integrated applications or browsers upon any part of the Service, including its software components; (c) share identification or passwords with persons other than authorized Users or permit the Service to be accessed by individuals who are not authorized Users; (d) provide any reports, data or information generated by the Service to an Onclusive competitor.

3.2 Usage Limits.  The Service and Content may be subject to usage and feature limits, as further specified in the applicable Order Form and this Agreement. Customer shall not exceed such unless Customer purchases additional quantities or features through the online ordering facility or via a “add-on” agreement or a written amendment to the original Order Form.

3.3 Limitations. A User authorization may be reassigned to a new individual replacing an individual who no longer requires ongoing use of the Service; however, a User’s login credentials may not be shared with any other individual. Customer shall abide by, and ensure that its Users abide by, all applicable local, state, national and foreign laws and regulations in connection with its use of the Service. Customer shall be responsible for the accuracy, quality and legality of Customer Data and the source from and means by which Customer acquires the Customer Data.  Customer shall not use the Service in any way not expressly provided for in this Agreement. Customer shall (i) be responsible for all activities that occur under Customer’s account, including protecting the confidentiality of Users’ passwords and User IDs, and maintaining timely contact information for such account; (ii) assume responsibility for acts and omissions of all Users (whether employees of Customer or an Associated Entity); (iii) ensure that all Users’ use of the Service is in compliance with this Agreement, the Documentation, Onclusive’s reasonable instructions; (iv) use commercially reasonable efforts to prevent unauthorized access to and use of the Service, and shall notify Onclusive of any unauthorized use of Customer’s account or a User login credentials or any other breach of security that is known or suspected by Customer.

3.4 Queries. The Onclusive Monitoring feature of the Service monitors various information sources for mentions of words or phrases requested by Customer. Onclusive reserves the right to refuse to perform any monitoring of a word or phrase that Onclusive reasonably determines is unlawful or against Onclusive policies.

3.5 Media Database.  Customer may allow its Users to access and use Onclusive’s media database that contains media profiles and associated information (“Media Database”) to create and download lists of journalist information, send and track email communications to journalists, and attach its own personal notes to journalist profiles. Customers who use the Media Database to communicate in any way (via email, phone call, social media) agree to do so on their own behalf and for the purposes of media relations work only. Customer will not: (1) attempt to download, either manually or in an automated fashion, the entire Media Database or significant portions thereof; (2) remove any proprietary notices, graphics, or text contained in or on the Media Database or on any downloaded lists; (3) make the Media Database or any downloaded lists available to non-Users, unless otherwise permitted under this Agreement; (4) use the media database in any way which is likely to cause harm to the journalists; (5) incorporate or use the Media Database in any resale process; or (6) use the Media Database in a manner that would violate any applicable law, including but not limited to the CAN-SPAM Act or other anti-spamming laws or regulations and the Canadian Personal Information Protection and Electronic Documents Act as amended by the Canada Anti-Spam Legislation. Onclusive reserves the right to terminate customers who are shown not to have adhered to these requirements. The Customer owns and is wholly responsible for all data the Customer enters into the Onclusive platform. Onclusive cannot be held liable for errors and omissions, or illegal data entered or inflammatory communications distributed via the Onclusive platform by Customer. 

4.   Proprietary Rights

  1. Indemnity.
  2. By Onclusive. Onclusive will (a) defend Customer against any filed lawsuit (a “Claim”) brought against Customer by a third party (the “Claimant”) alleging that the Service infringes any U.S. copyright, trademark or patent duly issued as of the Effective Date of this Agreement, and shall (b) either (i) indemnify Customer with respect to any final, non-appealable judgments, costs, fines or penalties awarded, entered or assessed against Customer by a court of competent jurisdiction that directly result from a Claim, or (ii) pay the value of any settlement with the Claimant agreed to by Customer in writing. Onclusive’s obligations under this Section are conditioned upon Onclusive having sole control of any such action, upon Customer notifying Onclusive promptly in writing of the Claim, giving Onclusive all authority, information, and assistance necessary to settle or defend such Claim, and making no admission of guilt or liability with respect to the Claim. In addition, if the use of the Service is found to infringe, or is enjoined, or Onclusive believes the Service is likely to infringe or be enjoined, Onclusive may, at its sole option, (i) procure for Customer the right to continue use of the Service as furnished; (ii) replace or modify the Service to make it non-infringing, provided that it still substantially conforms to the applicable Documentation; or (iii) if Onclusive, after using all commercially reasonable efforts, is unable to accomplish the foregoing remedies, terminate the Agreement and refund Customer the prorated amount of any prepaid fees. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Onclusive, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Onclusive, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. Notwithstanding anything to the contrary, in no event shall Onclusive have any authority to agree to any financial or other liability of Customer without Customer’s prior written consent. The foregoing states the sole and exclusive indemnification liability of Onclusive under this Agreement.
    1. By Customer. Customer will defend Onclusive against any third-party action claiming (a) any use of a Service by Customer other than as permitted in this Agreement, or (b) Onclusive’s use of Customer materials, data and information as permitted in this Agreement infringes or misappropriates any third party’s proprietary rights, including intellectual property or data privacy rights, and shall indemnify and pay all settlements entered into and damages awarded against Onclusive to the extent incurred as a direct result of such action. Customer shall have sole control of any such action. Onclusive shall notify Customer promptly in writing of the claim and give Customer all authority, information, and assistance necessary to settle or defend such claim, and make no admission of guilt or liability with respect to the claim. Notwithstanding anything to the contrary, in no event shall Customer have any authority to agree to any financial or other liability of Onclusive without Onclusive’s prior written consent. Onclusive may participate in the defense of any claims with counsel of its own choosing. The foregoing states the sole and exclusive indemnification liability of Customer under this Agreement with respect to third party claims.
  3. Data Privacy & Customer Obligations.  Customer agrees to comply with all applicable data protection and privacy laws and regulations in connection with Customer’s and its Users’ use of the Service. To the extent that any Customer Data or personally identifiable or private information of Users (“User Information”) provided to Onclusive in connection with the Service is subject to any privacy laws or regulations, including those applicable to the European Union and the United Kingdom including, without limitation the EU General Data Protection Regulation and EU e-Privacy Directive (collectively, “EU Data Protection Laws”), Customer shall, prior to providing such Customer Data or User Information to Onclusive promptly notify Onclusive in writing.  In such event, Customer accepts and agrees to the Data Processing Addendum set forth at https://onclusive.com/legal/gdpr-dataprocessingaddendum/. If Customer does not accept and agree to the Data Processing Addendum with Onclusive, then Customer represents and warrants that the Customer Data and User Information is not subject to the EU Data Protection Laws. Customer will indemnify and hold harmless Onclusive and its Affiliates, and their licensors, suppliers, employees, contractors and agents from and against all liabilities, losses, damages, costs, and expenses (including attorneys’ fees) as incurred by Onclusive arising from or related to Customer’s breach of the foregoing warranty or violation of the EU Data Protection Laws.
  4. Limitation of Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, (a) NEITHER PARTY NOR ITS LICENSORS, SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT, CONTENT AND TECHNOLOGY SUPPLIERS), ASSOCIATED ENTITIES, AND THEIR RESPECTIVE OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE, INCLUDING WITHOUT LIMITATION, LOST PROFITS, SAVINGS OR REVENUE OR OTHER COMMERCIAL INJURY, OR THE USE OR INABILITY TO USE A SERVICE AND/OR ANY OUTPUT THEREOF, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY WHETHER LIABILITY IS ASSERTED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, IN ANY WAY ARISING OUT OF PROVISION OF THE SERVICE OR THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY; AND (B) EACH PARTY’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID TO ONCLUSIVE BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE ACT THAT GAVE RISE TO THE LIABILITY. THE LIMITATIONS IN THIS SECTION SHALL NOT APPLY TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS, CUSTOMER’S PAYMENT OBLIGATIONS OR BREACH BY CUSTOMER OF SECTION 4 (PROPRIETARY RIGHTS). NEITHER ONCLUSIVE NOR ITS LICENSORS AND SUPPLIERS SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B)  FOR ANY MATTER BEYOND ONCLUSIVE’S REASONABLE CONTROL; OR (C) FOR ANY COMBINATION, OPERATION OR USE OF A SERVICE WITH TECHNOLOGY OR DATA NOT SUPPLIED BY ONCLUSIVE FOR OTHER THAN THE INTENDED PURPOSE, OR ARISING FROM ANY NON-ONCLUSIVE MODIFICATIONS OF A SERVICE OR REPORT, IF THE CLAIM WOULD NOT HAVE ARISEN WITHOUT SUCH MODIFICATION.
  5. General
  6. Independent Contractors. The relationship of the parties is that of independent contractors and nothing contained in this Agreement shall be construed to make either party an agent, partner, joint venturer, or representative of the other for any purpose. Neither party may bind the other party in any way.
    1. No Third-Party Beneficiaries. This Agreement is made solely and specifically between and for the benefit of Onclusive and Customer, and except as expressly provided herein no other person or entity shall have any rights, interests or claims hereunder or be entitled to any benefits under or on account of this Agreement as a third-party beneficiary or otherwise.
    2. Force Majeure. Non-performance of either party shall be excused to the extent that performance is rendered impossible or commercially impracticable by any reason where failure to perform is beyond the reasonable control of the non-performing party.
    3. Assignment. Neither party may assign this Agreement, in whole or in part, without the other party’s written consent; provided, however, that either party may assign its rights and obligations under this Agreement without such consent in connection with any acquisition or change of control of such party or transfer by Onclusive of a Service whether by sale of assets or securities, merger, consolidation, operation of law or otherwise. This Agreement shall inure to the benefit of and be binding on the parties and their respective successors and permitted assigns.
    4. Governing Law; Jurisdiction. The rights of the parties hereunder shall be governed by the laws of the State of California, without giving effect to its principles of conflicts of laws. Each party consents to the exclusive jurisdiction and venue of the appropriate courts in the city and county of San Francisco for all disputes arising out of or relating to this Agreement or the Service.
    5. Dispute Resolution. If a dispute arises out of or relates to this Agreement, the parties agree to use their good faith best efforts to resolve the dispute as quickly as possible through negotiation, including if necessary, meetings between the executives of each party. If the parties have not resolved the dispute within thirty (30) days after the initial meeting to resolve the dispute, then the parties agree first to try in good faith to resolve the dispute through mediation administered by the America Arbitration Association under its Commercial Mediation Procedures, in San Francisco, California, and to share the cost of mediation equally. If the parties cannot resolve the dispute through mediation, then the parties agree to binding arbitration before a single arbitrator who is a retired judge experienced in commercial disputes of the nature of the parties’ claims through arbitration administered by the America Arbitration Association under its Commercial Arbitration Procedures in San Francisco, California. Each party acknowledges that this provision constitutes a material inducement upon which the other party has relied in entering into this Agreement.
    6. Severability. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, such provision shall be stricken from the Agreement and the remaining provisions of this Agreement shall remain in full force and effect.
    7. Entire Agreement. This Agreement, including the applicable Order Form and all agreements referenced therein, constitutes the entire agreement between the parties with respect to its subject matter and replaces any prior understandings, written or oral. No terms, provisions or conditions of any purchase order, invoice or other business form or written authorization used by Customer will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement or Order Form regardless of any failure of Onclusive to object to such terms, provisions or conditions, even if such document is signed by the parties.
    8. Amendment; Waiver. Onclusive may modify or update these terms and conditions from time to time without notice, in which case, the “last modified date” at the top of this page will be updated. Such modifications or updates will not materially reduce Customer’s rights or Onclusive’s obligations hereunder. Customer should review these terms and conditions periodically for changes. Customer’s continued use of the Service after any such change constitutes Customer’s acceptance of the revised terms and conditions. No term of this Agreement may be waived except by a written instrument signed by the party against whom the waiver is enforced. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.