1. INTRODUCTION
Alcreo Media Group Inc (“Company”, “We”, “Us”, “Our”, or “AlcreoMedia”) provides its Services (as defined below) to you, the customer(“Customer”, “You”, or “Your”).Your use of the Services is subject to and governed by thisMaster Subscription Agreement (“Agreement”) and the terms of any SubscriptionOrder Form (“Order Form”) that You entered into that specifically referencesthis Agreement. Agreement includes the Order Form.By accepting this Agreement, either by clicking a boxindicating your acceptance or by executing an Order Form that references thisAgreement, You agree to the terms of this Agreement. If you are entering intothis Agreement on behalf of a company or other legal entity, you represent thatyou have the authority to bind such entity and its affiliates to the terms andconditions of this Agreement, in which case the terms “Customer”, “You”, or“Your” shall refer to such entity and its affiliates. If you do not have suchauthority, or if You do not agree with these Terms and Conditions, You must notaccept this Agreement and may not use the Services.
We reserve the right to update and change the terms of thisAgreement from time to time in our sole discretion. We will provide you withnotice by updating this page and indicating the date of the update, so pleasecheck this page frequently for updates and changes. We also may send you noticevia email to the address associated with your account. You agree you will bebound by the terms fourteen (14) days after notice, and Your continued use ofthe service fourteen (14) days after notice shall constitute acceptance of thenew terms by You going forward. You expressly agree that this notice protocolis sufficient and adequate for purposes of providing you notice of therevisions to this Agreement.You may not access the Services if you are our directcompetitor, except with our prior written consent. In addition, You may notaccess the Services for purposes of monitoring their availability, performanceor functionality, or for any other benchmarking or competitive purposes.This Agreement was last updated on May 9th, 2018. It iseffective between You and Us as of the date of You accepting this Agreement.
2. SERVICES AND SUPPORT
2.1 The“Services” include Our website, software, and other services provided to Youbased on the plan purchased and indicated on the Order Form. Any new featuresadded to or augmenting the Services are also subject to the terms of thisAgreement. Certain new features made generally available at no cost to allsubscribing customers will be made available to You at no additional charge;however, the availability of some new features may require the payment ofadditional fees, and Alcreo Media will determine at its sole discretion whetheraccess to any such new features will require an additional fee.
2.2 Subject tothe terms of this Agreement, Company will use commercially reasonable effortsto provide Customer the Services.
2.3 As part ofthe registration process, You may provide Us with Your username and password,login credentials, or other ‘admin access’ to Your social media or otherweb-based accounts so that We can provide you the Services. We do not store,give away, or otherwise distribute your password to any third parties. We donot make any claims as to the ownership of these accounts to which we have beengiven access.
2.4 Regardless of anyperceived representation to the contrary, Company in no way guarantees aspecific result for Customer. You understand that you are paying Us for ourwork to generate results, but that results are never guaranteed. It isunderstood that Company has no control over Facebook, Instagram, or othersocial media / advertising platforms and if they decide to make changes totheir platforms.
2.5 As part of certain Services indicated on the OrderForm, We may bring attention of real users to Customer’s Instagram profile withgoals that may include increasing followers, likes, and comments. The expectedamounts of followers, likes and comments are not guaranteed to Customer in anyway, and depend on many factors outside of Company’s control. Moreover, Companycannot protect Customer from spam, fake, or inactive followers, as it is notalways possible to distinguish between these followers and real Instagramusers.
2.6 Subject tothe terms hereof, Company will provide Customer with reasonable technicalsupport services in accordance with Company’s standard practice.
3. THIRD PARTY SERVICES
3.1 The Servicesmay include connecting to and using certain third party products, services orsoftware under separate terms and conditions (collectively, “Third-partyProducts”) such as social media services like Instagram or Facebook. Be advisedthat Your use of such Third-party Products is governed solely by the terms andconditions of such Third-party Products, and We do not endorse, are notresponsible for, and make no representations as to such Third-party Products,their content or the manner in which they handle Your data. Alcreo Media is notliable for any damage or loss caused or alleged to be caused by or inconnection with Your access or use of any such Third-party Products, or Yourreliance on the privacy practices or other policies of such Third-partyProducts.
3.2 Customeragrees and understands that Company is not affiliated with any such Third-partyProducts, including Google, Instagram, Facebook, or any Instagram third-partypartners in any way.
3.3 The Servicesmay contain features that require connecting to these various Third-partyProducts. To take advantage of these features, Customer may be required toprovide Company with the login credentials for such Third-party Products. Byproviding Us with this information, You are allowing Alcreo Media to pass Yourlogin credentials to these Third-party Products for this purpose.
4. RESTRICTIONS AND RESPONSIBILITIES
4.1 Customerwill not, directly or indirectly: reverse engineer, decompile, disassemble orotherwise attempt to discover the source code, object code or underlyingstructure, ideas, know-how or algorithms relevant to the Services or anysoftware, documentation or data related to the Services (“Software”); modify,translate, or create derivative works based on the Services or any Software(except to the extent expressly permitted by Company or authorized within theServices); use the Services or any Software for time sharing or service bureaupurposes or otherwise for the benefit of a third; or remove any proprietarynotices or labels.
4.2 Further,Customer may not remove or export from the United States or allow the export orre-export of the Services, Software or anything related thereto, or any directproduct thereof in violation of any restrictions, laws or regulations of theUnited States Department of Commerce, the United States Department of TreasuryOffice of Foreign Assets Control, or any other United States or foreign agencyor authority. As defined in FAR section 2.101, the Software anddocumentation are “commercial items” and according to DFAR section 252.227‑7014(a)(1)and (5) are deemed to be “commercial computer software” and “commercialcomputer software documentation.” Consistent with DFAR section 227.7202 and FARsection 12.212, any use modification, reproduction, release, performance,display, or disclosure of such commercial software or commercial softwaredocumentation by the U.S. Government will be governed solely by the terms ofthis Agreement and will be prohibited except to the extent expressly permittedby the terms of this Agreement.
4.3 Customerrepresents, covenants, and warrants that Customer will use the Services only incompliance with Company’s standard published policies then in effect (the“Policy”) and all applicable laws and regulations. Customer hereby agreesto indemnify and hold harmless Company against any damages, losses,liabilities, settlements and expenses (including without limitation costs andattorneys’ fees) in connection with any claim or action that arises from analleged violation of the foregoing or otherwise from Customer’s use ofServices. Although Company has no obligation to monitor Customer’s use of theServices, Company may do so and may prohibit any use of the Services itbelieves may be (or alleged to be) in violation of the foregoing.
4.4 Customershall be responsible for obtaining and maintaining any equipment and ancillaryservices needed to connect to, access or otherwise use the Services, including,without limitation, modems, hardware, servers, software, operating systems,networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of theEquipment, Customer account, passwords (including but not limited toadministrative and user passwords) and files, and for all uses of Customeraccount or the Equipment with or without Customer’s knowledge or consent.
5. CONFIDENTIALITY; PROPRIETARY RIGHTS
5.1 Each party(the “Receiving Party”) understands that the other party (the “DisclosingParty”) has disclosed or may disclose business, technical or financialinformation relating to the Disclosing Party’s business (hereinafter referredto as “Proprietary Information” of the Disclosing Party). ProprietaryInformation of Company includes non-public information regarding features,functionality and performance of the Service. Proprietary Information ofCustomer includes non-public data provided by Customer to Company to enable theprovision of the Services (“Customer Data”). The Receiving Party agrees: (i) totake reasonable precautions to protect such Proprietary Information, and (ii)not to use (except in performance of the Services or as otherwise permittedherein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply withrespect to any information after five (5) years following the disclosurethereof or any information that the Receiving Party can document (a) is orbecomes generally available to the public, or (b) was in its possession orknown by it prior to receipt from the Disclosing Party, or (c) was rightfullydisclosed to it without restriction by a third party, or (d) was independentlydeveloped without use of any Proprietary Information of the Disclosing Party or(e) is required to be disclosed by law.
5.2 Customer shall own all right, title and interest in and to the Customer Data, as well asany data that is based on or derived from the Customer Data and provided toCustomer as part of the Services. Company shall own and retain all right, titleand interest in and to (a) the Services and Software, all improvements,enhancements or modifications thereto, (b) any software, applications,inventions or other technology developed in connection with support, and (c)all intellectual property rights related to any of the foregoing.
5.3 Notwithstanding anything to the contrary, Company shall have the right collect and analyze dataand other information relating to the provision, use and performance of variousaspects of the Services and related systems and technologies (including,without limitation, information concerning Customer Data and data derivedtherefrom), and Company will be free (during and after the term hereof)to (i) use such information and data to improve and enhance the Services andfor other development, diagnostic and corrective purposes in connection withthe Services and other Company offerings, and (ii) disclose such data solely inaggregate or other de-identified form in connection with its business. Norights or licenses are granted except as expressly set forth herein.
PAYMENT OF FEES
6.1 Customer will pay Company the then applicable fees described in the Order Form in accordancewith the terms therein (the “Fees”). If Customer’s use of the Servicesexceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customershall be billed for such usage and Customer agrees to pay the additional feesin the manner provided herein. Company reserves the right to change theFees or applicable charges and to institute new charges and Fees upon thirty(30) days prior notice to Customer (which may be sent by email). If Customerbelieves that Company has billed Customer incorrectly, Customer must contactCompany no later than 60 days after the closing date on the first billingstatement in which the error or problem appeared, in order to receive anadjustment or credit. Inquiries should be directed to Company’s customersupport department.
6.2 Company may choose to bill through an invoice, in which case, full payment for invoices issued inany given month must be received by Company thirty (30) days after the mailingdate of the invoice. Unpaid amounts are subject to a finance charge of1.5% per month on any outstanding balance, or the maximum permitted by law,whichever is lower, plus all expenses of collection and may result in immediatetermination of Service. Customer shall be responsible for all taxes associatedwith Services other than U.S. taxes based on Company’s net income.
7. TERM AND TERMINATION
7.1 Subject to earlier termination as provided below, this Agreement is for the InitialService Term as specified in the Order Form, and shall be automatically renewedfor additional periods of the same duration as the Initial Service Term(collectively, the “Term”), unless either party requests termination at leastthirty (30) days prior to the end of the then-current term, or otherwiseindicated on the Order Form.
7.2 In addition to any other remedies it may have, either party may also terminate thisAgreement upon thirty (30) days’ notice (or without notice in the case ofnonpayment) if the other party materially breaches any of the terms orconditions of this Agreement. Customer will pay in full for the Servicesup to and including the last day on which the Services are provided. Allsections of this Agreement which by their nature should survive terminationwill survive termination, including, without limitation, accrued rights topayment, confidentiality obligations, warranty disclaimers, and limitations ofliability.
7.3 Customers whopurchase Services with Initial Service Terms greater than one (1) month asspecified on the Order Form have the option to terminate this Agreement at anytime during the first thirty (30) days of Service for any reason. Customer maychoose to exercise this option by emailing their assigned Customer ServiceRepresentative. If Customer chooses to exercise this option, Company willrefund Customer for the prorated amount remaining on their Initial Serviceterm, rounded up to the nearest month. For example, if the InitialService Term was 3 months, then the refund amount would be ⅔ the Fees.
8. WORK PRODUCT OWNERSHIP
Any copy rightable works, ideas, discoveries, products, orother information (collectively, the “Work Product”) developed in whole or inpart by Company in connection with the Services will be the exclusive propertyof Company. Upon request, We will execute all documents necessary to confirm orperfect the exclusive ownership of Company to the Work Product. However, Ifcompany fails to adhere to payment terms/refuses to pay for renderedwork/services, Alcreo Media has full rights to use the rendered work forpromotional purposes, and does not release copyright around such work.
9. WARRANTY AND DISCLAIMER
Company shall use reasonable efforts consistent withprevailing industry standards to maintain the Services in a manner whichminimizes errors and interruptions in the Services. Services may betemporarily unavailable for scheduled maintenance or for unscheduled emergencymaintenance, either by Company or by third-party providers, or because of othercauses beyond Company’s reasonable control, but Company shall use reasonableefforts to provide advance notice in writing or by e-mail of any scheduledservice disruption. However, Company does not warrant that the Serviceswill be uninterrupted or error free; nor does it make any warranty as to theresults that may be obtained from use of the Services. EXCEPTAS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” ANDCOMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOTLIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULARPURPOSE AND NON-INFRINGEMENT.
10. LIMITATION OF LIABILITY NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILYINJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALLEQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES,CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TOANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETOUNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROROR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COSTOF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS;(B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES;(C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTSTHAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEESPAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHEROR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. MISCELLANEOUSIf any provision of this Agreement is found to beunenforceable or invalid, that provision will be limited or eliminated to theminimum extent necessary so that this Agreement will otherwise remain in fullforce and effect and enforceable. This Agreement is not assignable,transferable or sublicensable by Customer except with Company’s prior writtenconsent. Company may transfer and assign any of its rights and obligationsunder this Agreement without consent. This Agreement, which includes the OrderForm, is the complete and exclusive statement of the mutual understanding ofthe parties and supersedes and cancels all previous written and oralagreements, communications and other understandings relating to the subjectmatter of this Agreement, and that all waivers and modifications must be in awriting signed by both parties, except as otherwise provided herein. Noagency, partnership, joint venture, or employment is created as a result ofthis Agreement and Customer does not have any authority of any kind to bindCompany in any respect whatsoever. In any action or proceeding to enforcerights under this Agreement, the prevailing party will be entitled to recovercosts and attorneys’ fees. All notices under this Agreement will be in writingand will be deemed to have been duly given when received, if personallydelivered; when receipt is electronically confirmed, if transmitted byfacsimile or e-mail; the day after it is sent, if sent for next day delivery byrecognized overnight delivery service; and upon receipt, if sent by certifiedor registered mail, return receipt requested. This Agreement shall begoverned by the laws of the State of California without regard to its conflictof laws provisions.
