Terms & Conditions - Rallio

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TERMS & CONDITIONS

Last Updated: February 5, 2019

RALLIO Services. THE FOLLOWING TERMS AND CONDITIONS (“AGREEMENT”) APPLY TO THE SERVICES PROVIDED TO YOU BY SOCIALWISE, INC. (d.b.a, “RALLIO”). PROCUREMENT OF, USE OF, OR ACCESS TO SUCH SERVICES IS SUBJECT TO YOUR, AND THE ENTITY YOU REPRESENT, (TOGETHER, “CLIENT”) COMPLIANCE WITH THIS AGREEMENT.

1. Scope.

Rallio provides various products and services related to brand, social media and reputational management (“Services”). The Services ordered by Client shall be as set forth in an “Order Form”, meaning such Services are: (i) set forth in an Order Form or Purchase Order or Statement of Work (SOW) executed by the parties or (ii) selected by Client via a Rallio online purchase process. This Agreement begins on the effective date of the purchase.

2. Content; Social Media.

To the extent the Services include the creation of any social media content for Client (“Created Content”), Client will own the copyright in such Created Content. To the extent Client provides Rallio with any images, quotes, logos, trademarks or other creatives (collectively, “Client Content”) for use in the Content – Client grants Rallio the right and license to use, reproduce and modify such Client Content in connection with its creation of the Created Content. Except as set forth in this paragraph, no intellectual property rights are assigned or transferred by Rallio in connection herewith.

To the extent the Services include the Rallio’s posting or other publication of Created Content or Client Content on behalf of Client, Client grants Rallio the right and license to engage in such publication and distribution activities.

If the foregoing requires Rallio access any of Client’s social media accounts (such as Client’s Facebook or Twitter account) (“Accounts”), Client grants Rallio the right and license to use access and use the Accounts for such purposes (including Client’s Account log-in credentials).

Client warrants that (i) it has all rights necessary to provide Rallio with the Client Content and the Account for all purposes contemplated above, (ii) all Client Content and Account credentials will be accurate and up-to-date at all times and (iii) Rallio’s exercise of the foregoing rights will not violate or infringe any laws, regulations or the rights of any third party (provided that, the warranty in this subsection (ii) will not apply to any Created Content that is wholly original to Rallio).

3. Warranties; Disclaimer.

Each party represents and warrants that: (i) it is a corporation or other legally organized entity in good standing under the laws of the state in which it was formed, (ii) it has the power and authority to execute, deliver, and perform its obligations under this Agreement; (iii) it will comply with all laws, regulations and third party rights (including privacy rights) in connection herewith and (iv) this Agreement is the valid and binding obligation of the representing party, enforceable against such party in accordance with its terms.

Rallio warrants that the Services provided by Rallio hereunder shall be performed in a highly professional manner, in accordance in all material respects with the provisions of this Agreement, and in accordance with any specifications agreed to by the parties in writing. In the event any Services do not conform in any material respect to any of the requirements set forth above or in the Order Form, and Client so notifies Rallio in writing within thirty (30) days following completion of Services involved, Rallio shall, as Client’s sole remedy, at no additional charge to Client use commercially reasonable efforts to re-perform or otherwise correct such non-conformity.

EXCEPT AS SET FORTH IN THIS PARAGRAPH, ALL SERVICES AND DELIVERABLES ARE PROVIDED “AS IS” AND RALLIO HEREBY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SUCH DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

4. Limitation on Liability.

THE PARTIES HEREBY AGREE THAT IN NO EVENT SHALL EITHER PARTY HERETO BE LIABLE IN CONNECTION WITH ANY SUBJECT MATTER OF THIS AGREEMENT FOR ANY (I) INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF FORESEEABLE OR (II) AMOUNTS IN THE AGGREGATE IN EXCESS OF THE FEES PAID BY CLIENT TO RALLIO UNDER THE ORDER FORM (PROVIDED THAT, IF NO AMOUNTS HAVE BEEN PAID, SUCH CAP SHALL BE $1,000.00). IN ADDITION, THE FOREGOING LIMITATION ON LIABILITY WILL NOT APPLY TO ANY BREACH OF SECTION 6. OR ANY INDEMNITY OBLIGATIONS THE FOREGOING SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

5. Fees; Payment.

Client shall pay Rallio for the Services in accordance with the pricing schedule on the Order Form attached hereto. Except as otherwise stated on the Order Form, payment shall be due and payable in advance (in full) within thirty (30) days from the date of Rallio’s invoice. In the event of a dispute, Client will notify Rallio in writing within five (5) business days of identifying the dispute that a dispute exists and shall provide to Rallio in writing a description of the nature of the dispute and the disputed dollar amount. Client shall pay within the terms stated herein the original invoice amount less the disclosed disputed amount. Client agrees that Rallio may, at its discretion, assess a late payment fee equal to the lesser of (i) one and one-half (1.5%) of the delinquent amount per thirty (30) days it is delinquent and (ii) the greatest amount allowed by applicable law (plus all costs of collection).

6. Confidentiality.

Any business, technical or other information disclosed by a party and that is identified as confidential, or is of a nature that the receiving party should reasonably understand it to be confidential, shall be the disclosing party’s confidential information (“Confidential Information”). Each party will (i) hold the other party’s Confidential Information in confidence (not disclosing it to any third party except in performance of the Order Form) and (ii) not use such information except for furthering the Order Form. All information related to Rallio’s fees and pricing, and all Services performance metrics, shall be Rallio’s Confidential Information. This paragraph will not apply to information that is generally available to the public without the receiving party’s fault or is independently developed by the receiving party. No intellectual property rights are assigned or transferred hereunder.

7. Feedback.

In the event Client provides Rallio with any suggestions, ideas, improvements or other feedback with respect to any aspect of the Services (“Feedback”), Client shall and hereby does grant Rallio (and its successors, licensees and assigns) a non-exclusive, perpetual, irrevocable, sub licensable, transferable, royalty-free, fully paid-up worldwide right and license to copy, reproduce, modify, create derivatives of, display, perform, sell, offer for sale, distribute and otherwise exploit such Feedback. No intellectual property rights are assigned or transferred hereunder.

8. Term; Termination.

Except as otherwise set forth on the Order Form, this Agreement shall begin on the Effective and be effective for the initial term set forth on the Order Form (if no initial term is specified – it will be one (1) year). Thereafter, this Agreement will automatically renew for consecutive terms of equal length to the initial term unless either party provides the other party with written notice of non-renewal at least sixty (60) days prior to the end of the then current term. Either party may terminate this Agreement or the Order Form in the event the other party materially breaches this Agreement or Order Form and fails to cure such breach within thirty (30) days from receipt of written notice thereof (five (5) days in the case of non-payment) (provided that, the notice of breach specifies the nature of the breach in sufficient detail and states the intent to terminate). If this Agreement is terminated for a party’s breach, the Order Form will terminate. If this Agreement naturally expires (including non-renewal by a party as set forth above), the terms and conditions will stay in effect for the remainder of the Order Form’s term. In addition, Rallio may suspend all Services if Client has failed to make a payment hereunder and does not pay the delinquent amount within forty-eight (48) hours from receipt of notice. Notices with respect to non-payment may be provided via email. All provisions which by their nature should survive termination – shall survive (including, all limitations on liability, warranty disclaimers, indemnity obligations, confidentiality obligations and outstanding payment obligations).

9. Client Indemnity.

Client agrees to indemnify and hold harmless Rallio and members of the Rallio Network from and against any and all claims, actions or demands of any person or entity, and any and all damage, injury, loss, liability, settlement, fine, penalty, cost or expense (including, without limitation, attorneys’ fees) , resulting from, arising out of or related to (i) any breach or violation, or alleged breach or violation, by Client of any term, duty, obligation or provision of this Agreement, (ii) any negligent, reckless or willful act or omission by Client, including any actual or alleged defect or deficiency in the design, manufacture or specifications of any Fixtures or other materials selected or provided by or for Client or (iii) any of Client’s Client Content, Accounts, products or services.

10. Force Majeure.

Other than with respect to Client’s payment obligations, neither party shall be responsible or liable for, or deemed in breach hereof because of, any delay in the performance of their respective obligations due to circumstances preventing performance that are beyond the reasonable control of the party experiencing the delay, including acts of God, severe weather conditions, strikes or other labor difficulties, war, riots, requirements, actions or failures to act on the part of governmental authorities, inability despite due diligence to obtain required licenses, permits or approvals, fire, damage to or breakdown of necessary facilities, or transportation delays or accidents.

11. Mark Usage.

Client agrees that Rallio may use Client’s name and logo on Rallio’s website and in Rallio’s sales and marketing materials (such as, presentations, ads, data sheets, and press releases) as part of a general list of clients. Client also agrees that Rallio may use on the Rallio website, and in Rallio’s sales and marketing materials, general descriptions and/or images accurately depicting the work product resulting from the Services (such as social media posts). Client also agrees, as Rallio’s request, to participate in a white paper drafted and published by Rallio regarding the success of the Services.

12. General.

The parties are independent contractors hereunder and are responsible for their own actions. Nothing herein shall be construed to imply that either party is the partner, joint venture, employee or agent of the other and neither party shall have the authority to bind the other in any respect.
Neither party will assign this Agreement to any third party without the other party’s prior written consent; provided that, either party may, without consent, assign this Agreement to a successor to all or substantially all of its business or assets. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns.

All notices under this Agreement will be in writing and delivered to the parties at their respective addresses stated on the Order Form, or at such other address designated by written notice. Notices will be deemed to have been given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile; the day after being sent, if sent for next day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested. Notices may be via email to the extent permitted herein.

By signing the attached Order Form the parties hereto have agreed to be bound by the terms of this Agreement. This Agreement (including the Order Form, and any schedules and statements of work executed in connection herewith) contains the entire understanding of the parties. In the event of a conflict between any of the terms and conditions herein and any term or condition in the Order Form or any schedule or statement of work – the Order Form, schedule or statement of work (as applicable) shall control. This Agreement can only be modified or waived on mutual written agreement of the parties. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that Agreement shall otherwise remain in full force and effect and enforceable.

This Agreement is governed by the laws of the state of California, without regard to any conflict of law provisions. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court), any dispute arising under this Agreement shall be finally settled in accordance with the Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) in accordance with such Rules (JAMS streamlined rules and procedures will apply if available). The arbitration shall take place in Orange County, California, in the English language and the arbitral decision may be enforced in any court. Disputes that cannot legally be arbitrated are subject to the sole and exclusive jurisdiction of, and venue in, the state and federal courts located in Orange County, California.