Software As a Service (SaaS) Agreement
The terms and conditions in this Software as a Service (SaaS) Agreement govern each AirPR order form (each, an “Order Form” and collectively with these terms and conditions, this “Agreement”) entered into between AirPR, Inc. (“AirPR”) and the customer specified in the Order Form (“Company”), effective as of the date of the Order Form. The customer does not include any of Company’s affiliates unless otherwise expressly agreed in the Order Form. By signing an Order Form, or accessing or using any AirPR Service, Company signifies that Company has read, understood and agrees to be bound by these terms and conditions. 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:
1.1 “Content” means all data, information and content available through the Service, excluding Company Data.
1.2 “Company Data” means Company’s analytics data in connection with the Company’s website.
1.3 “Documentation” means the documentation and other materials in written or electronic form provided to Company by AirPR in connection with Company’s use of the Service.
1.4 “Enhancements” means the following: minor modifications, revisions and corresponding Documentation with respect to the Service, including the addition of enhancements or improved performance made available by AirPR to the Service; however, Enhancements shall not include the addition of modules or significant new features not originally included as part of the Service.
1.5 “Maintenance Modifications” means bug fixes, patches, modifications or revisions to the Service that correct errors therein.
1.6 “Service” AirPR’s public relations and content marketing analytics platform, including the software and other technology that powers the service and any Enhancements, Maintenance Modifications and corresponding Documentation.
1.7 “User” means an individual user authorized by Company to use the Service.
Any capitalized terms not defined in these terms and conditions shall have the meanings ascribed to them in the Order Form.
2.1 Provision. AirPR shall provide the Company’s Users with (a) access to and support of the Service according to the Order Form and (b) Enhancements and Maintenance Modifications as they become generally available to AirPR’s customers.
2.2 License. Subject to the Order Form and the terms and conditions contained in this SaaS Agreement, AirPR grants Company the non-exclusive, non-transferable, non-sublicensable, license, during the Term set forth in the Order Form, to use: (a) the Service for its intended purpose, in accordance with the Documentation; and (b) the Documentation in conjunction with Company’s use of the Service. The Service and the Content provided through the Service may be subject to usage limits, as further specified in the applicable Order Form and this Agreement. The quantity of user’s data, content, geographies, competitors, publications, features, modules or other elements or units specified in the Order Form refers to the maximum volume purchased by Company. This license is limited to, and Company shall not exceed, such usage limits, unless otherwise agreed to by the parties in a new “add-on” Order Form or a written amendment to the original Order Form.
2.3 Company Website Analytics Data. To enable AirPR to provide the Service to Company, Company shall configure and make available to AirPR Company Data. The Services will be integrated into either Google Analytics or Adobe Analytics, unless otherwise noted in the Order Form. As part of the Service, certain analytics code may need to be included on Company’s website to enable certain features and functionality, and increase the accuracy of the Service. If Company does not permit AirPR to include the analytics code on Company’s website, then such features, functionality and increased accuracy may not be available to Company, and Company shall remain obligated under the Order Form.
2.4 Queries. The AirPR Monitoring feature of the Service monitors various information sources for mentions of words or phrases requested by Company. AirPR reserves the right to refuse to perform any monitoring of a word or phrase that AirPR reasonably determines is unlawful or against AirPR policies.
2.5 Contacts Database. Company may allow its Users to access and use AirPR’s proprietary database that contains media profiles and associated information (“Contacts Database”) to create and download lists of media outlet information, and attach its own personal notes to Contacts Database. By default, only one (1) simultaneous user will have access to AirPR Author Intelligence unless otherwise specified in the Order Form. Company will not: (1) attempt to download, either manually or in an automated fashion, the entire Contacts Database; (2) remove any proprietary notices, graphics, or text contained in or on the Contacts Database or on any downloaded lists; (3) make the Contacts Database or any downloaded lists available to non-Users, unless otherwise permitted under this Agreement; (4) incorporate or use the Contacts Database in any resale process; or (5) use Contacts 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 all as amended by the Canada Anti-Spam Legislation. UNLESS OTHERWISE PROVIDED IN THIS AGREEMENT, DOWNLOADING, REPRODUCTION, REDISTRIBUTION, OR REPUBLICATION OF THE CONTACTS DATABASE IS AT CUSTOMER’S OWN RISK. AIRPR AND ITS THIRD-PARTY PROVIDERS WILL NOT BE LIABLE FOR CUSTOMER’S SUBSEQUENT USE OR DISTRIBUTION OF THE CONTACTS DATABASE
2.6 Limitations. A User authorization may be reassigned to a new individual replacing one who no longer requires ongoing use of the Service; however, a User’s login credentials may not be shared with any other individual. Company 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. Company shall be responsible for the accuracy, quality and legality of Company Data and the source from and means by which Company acquired the Data. Company may not nor 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 software; (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 AirPR competitor; or (e) use the Service in any way not expressly provided for in this Agreement. Company shall (i) be responsible for all activities that occur under Company’s account, including protecting the confidentiality of Company’s passwords and user IDs, and maintaining timely contact information for such account; (ii) ensure that all Users’ use of the Service is in compliance with this Agreement, the Documentation, AirPR’s reasonable instructions, and applicable law and government regulations; (iii) use commercially reasonable efforts to prevent unauthorized access to and use of the Service, and shall notify AirPR of any unauthorized use of Company’s account or a User login credentials or any other breach of security that is known or suspected by Company.
2.7 Support. To answer questions regarding use of the Service, help Company with diagnosis and fixing of problems, allow Company to file bug reports and communicate generally with AirPR, AirPR shall provide Company with telephone and e-mail customer support between the hours of 9:00 am and 5:00 pm Pacific Time during AirPR’s normal days of operation, which excludes weekends and holidays. AirPR’s telephone support number is: 415-545-8247 (subject to change upon notification to Company). AirPR’s email support address is: firstname.lastname@example.org.
2.8 Maintenance. If a system failure should occur that creates an outage of the Service, AirPR will utilize all reasonable means to end the outage as soon as possible. Outages due to the Internet, hosting providers and/or Company systems are outside the control of AirPR. In such event, AirPR will assist the Company in the diagnosis of these problems but may not be able to resolve the problem. From time to time, AirPR or its hosting providers will perform preventative maintenance, such as updating servers and routers with security patches, and software upgrades. AirPR will keep any resulting downtime reasonable and shall use all reasonable efforts to perform such maintenance outside of normal working hours.
3. Fees and Payment.
3.1 Fees. Company shall pay AirPR the amounts and in accordance with the payment terms specified on the Order Form. Fees for AirPR Monitoring functionality is determined by the volume of monitoring data and attribution data which is made available to Company. Unless otherwise specified in an Order Form, AirPR monitoring data will cover two (2) months of historical coverage. If Company’s use of the Services exceeds the usage or service capacity limits set forth in the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Company shall be billed for such usage and Company agrees to pay the additional fees in the manner provided herein. AirPR reserves the right to change the fees or applicable charges and to institute new charges and fees at the end of the Initial Service Term or then‑current renewal term, upon thirty (30) days prior notice to Company (which may be sent by email).
3.2 Digital Monitoring Fees. Digital monitoring fees are based on the number of articles AirPR tracks and/or Company’s estimated article volume. Tiered fees, if set forth on an Order Form, are based on an estimate of Company’s usage.
3.3 Print Content Fees. For print content, AirPR may charge a fee as set forth on the applicable Order Form as well as a variable fee for delivery of certain articles.
3.4 Social Media Monitoring Fees. If applicable and to the extent Company uses AirPR’s social media functionality and features, Social media monitoring fees are based on the number of mentions that AirPR tracks and Company’s article volume. This fee is tiered based on the estimate of Company’s usage as set forth in the Order Form.
3.5 Broadcast Content Fees. Broadcast monitoring fees consist of a negotiated, nonrefundable fee based on Company’s estimate of how much broadcast coverage is included in the Service (i.e., how many clips mention Company or “clip volume”). Fees for Broadcast Content are charged as set forth on an Order Form, however, Company may obtain volume pricing on clip download packages by pre-paying for a number of clip downloads, which is non-refundable. Packages expire at the end of the Term, and clips must be used during the Service Term. If Company’s usage exceeds the package volume, then AirPR will invoice Company for the overage amounts. Company agrees to pay taxes, special services, out of market, special rush, archival, or product license fees in addition to the contractual rate, if applicable.
3.6 Database Fees. AirPR charges a fixed fee for access to AirPR’s proprietary database that contains media profiles and associated information as stated in the Order Form and if appropriate, a variable fee for distribution of emails. The number of email distributions that Company has purchased, if any, shall be stated on the Order Form.
3.7 Payment. All invoices are due net fifteen (15) days after invoice date. If Company’s procedures require an invoice be submitted against a purchase order or purchase order number issued before payment may be made, Company will issue a purchase order or purchase order number at least thirty (30) days before the payment due date. If Company believes that AirPR has billed Company incorrectly, Company must contact AirPR no later than sixty (60) days after the invoice date in which the error or problem first appeared to receive a credit.
3.8 Expenses. Company shall reimburse AirPR for all documented reasonable, out-of-pocket expenses incurred by AirPR in connection with any travel required by Company in connection with Service implementation, training and consulting services, provided such expenses meet Company’s travel expense reimbursement policies.
3.9 Taxes. The prices stated in AirPR’s quotations are exclusive of any federal, state, or other governmental taxes, duties, fees, or tariffs now or hereafter imposed on the Service. Company shall be responsible for, and if necessary reimburse, AirPR for all such taxes, duties, fees, excises, or tariffs, except for taxes imposed on AirPR’s net income.
3.10 Late Payment. Overdue payments shall be subject to a finance charge of one percent (1%) for each month or fraction thereof that the invoice is overdue, or the highest interest rate permitted by applicable law, whichever is lower. AirPR shall also be reimbursed for its collection costs incurred in attempting to collect any late payments, including reasonable attorney’s fees. If Company does not pay AirPR within thirty (30) days after the due date of any invoice, AirPR may, with prior written notice at its sole discretion, in addition to pursuing any of its other remedies, suspend provision of the applicable Services until all outstanding payments are made, or terminate the applicable Order Form and/or this Agreement. No such suspension shall affect AirPR’s rights or Company’s accrued obligations hereunder
4.1 Term. The Agreement shall remain in effect so long as any Order Form remains in effect and shall be coterminous with the last-to-expire/terminate Order Form outstanding. Unless stated otherwise in the Order Form, upon renewal each fee set forth in the then-current Order Form(s) will increase 8.66%.
4.2 Termination for Material Breach. Either party may terminate an Order Form (and this Agreement with respect to such Order Form) upon a material breach that is not cured within thirty (30) days following written notice thereof.
4.3 Effect of Termination. Termination of one Order Form shall not affect any other Order Form. Upon expiration or termination of an Order Form for any reason, Company will (a) pay any fees owed to AirPR for Services provided up to the date of termination; (b) immediately discontinue use of the Services, which will immediately cease; and (c) each party shall return or destroy the other party’s Confidential Information in its possession.
4.4 Survival. In addition to any payment obligations and rights that accrued prior to termination, the provisions of Sections 2.6 and 4.3 through 11 shall survive any termination of this Agreement.
5. Proprietary Rights.
5.1 Service. The Service, and all modifications, enhancements and derivative works thereof, all ownership, right, title and interest in and to the Service, and all associated intellectual property and other proprietary rights in and to the Service, belong to AirPR.
5.2 Content. The Content, and all modifications, enhancements and derivative works thereof, all ownership, right, title and interest in and to the Content, and all associated intellectual property and other proprietary rights in and to the Content, belong to AirPR or its third-party providers.
5.3 Data. All Company Data and all ownership, right, title and interest in and to the Data, including without limitation, all associated intellectual property and other proprietary rights, belong to the Company. Company grants AirPR the right to use the Company Data solely in an aggregated, anonymized form such that the Company Data cannot be identified as pertaining or linked to the Company.
5.4 Submissions. AirPR shall own all right, title and interest in and to any suggestions, ideas, feedback or other recommendations provided by Company relating to the Service (“Submissions”) and Company agrees to and hereby assigns such Submissions to AirPR.
5.5 Company Name and Logo. AirPR may use Company’s name and its logo on AirPR’s website and in its marketing materials to indicate that Company is a customer of AirPR. If mutually agreed upon, Company agrees to (a) serve as a reference customer for a testimonial and case study, and (b) participate in occasional speaking engagements and customer references.
6.1 Confidential Information. The term “Confidential Information” means all non-public information, whether business or technical in nature, that the other party identifies as being confidential, and includes (but is not limited to) information concerning business methods, business plans, new product launches, customer and vendor information, internal policies and procedures and pricing and other financial information. Notwithstanding the foregoing, information will not be deemed confidential if it (a) was known to the receiving party, and such information was acquired through proper methods, prior to its receipt from the disclosing party, as evidenced by written records of the receiving party; (b) is now or (through no act or failure on the part of the receiving party) later becomes generally known through no breach of this Agreement by the receiving party; (c) is supplied to the receiving party by a third party that is free to make that disclosure without restriction; or (d) is independently developed by the receiving party without use of or reference to any Confidential Information provided by the disclosing party.
6.2 Use; Disclosure. Each party agrees that during and for at least three (3) years after expiration or termination of this Agreement it will hold in strictest confidence, and will not use for any purpose unrelated to its performance of this Agreement or disclose to any third party, any Confidential Information of the other party, except (1) as necessary to implement, perform and enforce the terms of this Agreement; (2) by law; or (3) under appropriate nondisclosure terms to auditors, accounting, financial and legal advisers, or to an existing or potential investor, acquiring company, bank or other financial institution in connection with a merger, acquisition, financing, loan or similar corporate transaction. Neither party shall disclose the terms or conditions of this Agreement without the prior written consent of the other party, except (a) as may be required by law or (b) to its employees, contractors or agents who have a specific need to know such information and are under an obligation of confidentiality at least as restrictive as that contained in this Section. The restrictions on disclosure imposed by this Section shall not apply to information that is required by law or order of a court, administrative agency or other governmental body to be disclosed by the receiving party, provided that in each such case the receiving party provides the disclosing party with prompt written notice of such order or requirement and reasonably assists the disclosing party in obtaining a protective order or other appropriate relief. In no event may the Confidential Information of disclosing party be disclosed to its competitor or used to develop a competitive service.
7.1 AirPR Warranty. AirPR shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner that minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by AirPR or by third-party providers, or because of other causes beyond AirPR’s reasonable control, but AirPR shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, AirPR does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. AirPR warrants that, during the term of the applicable Order Form, it will provide each Service in material conformance with the requirements and for the use identified and as set forth in the applicable Order Form and Documentation. AirPR, at its sole expense and as Company’s sole remedy, will use commercially reasonable efforts to correct any material non-conformance within sixty (60) days after AirPR receives written notice from Company that includes information sufficient to permit AirPR to recreate the non-conformance. Company acknowledges that the Service and AirPR’s services are complex with a variety of dependencies, and as such, AirPR cannot guarantee that any services will be provided without error or interruption or accepted by any third party. AirPR’s warranty obligations are expressly subject to: (a) the Service being used in accordance with this Agreement, the applicable Order Form, the Documentation and any other instructions subsequently provided by AirPR; and (b) Company providing written notice to AirPR of any alleged breach of such warranty promptly after Company becomes aware of such breach. Notwithstanding anything else in this Agreement, AirPR shall have no liability under this Agreement or any applicable Order Form, pursuant to the warranty in this Section 6 or otherwise, arising out of or relating to: (1) any use, re-transmission or reliance on inaccurate or incomplete Company materials, data or information, from Company or its vendors or agents; (2) the failure of Company or a Company vendor or agent to provide the necessary information to AirPR in a timely manner; or (3) non-AirPR errors or omissions in use of, or input of any information or data in connection with, a Service.
7.2 Company Warranty. Company represents and warrants that it has full and sufficient rights to use and to disclose to AirPR any and all Company materials, data and information that it provides (or directs be provided) to AirPR.
7.3 Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 6, THE SERVICE IS PROVIDED “AS IS” AND AIRPR AND ITS LICENSORS DISCLAIM ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESSED OR IMPLIED. AIRPR EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS OR SUFFICIENCY FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, OR ARISING FROM THE COURSE OF DEALING BETWEEN THE PARTIES OR USAGE OF TRADE. AIRPR DOES NOT WARRANT THAT THE OPERATION OF THE SERVICE SHALL BE UNINTERRUPTED OR ERROR-FREE.
8.1 By AirPR. AirPR will defend Company against any third-party action claiming that the Service infringes any U.S. copyright, trademark or patent duly issued as of the Effective Date of this Agreement, and shall indemnify and pay all settlements entered into and damages awarded against Company to the extent incurred as a direct result of such action. AirPR will not be responsible for any settlement it does not approve in writing. AirPR’s obligations under this Section are conditioned upon AirPR having sole control of any such action, and upon Company notifying AirPR promptly in writing of the claim and giving AirPR all authority, information, and assistance necessary to settle or defend such claim. In addition, if the use of the Service infringes or is enjoined, or AirPR believes it is likely to infringe or be enjoined, AirPR may, at its sole option, (i) procure for Company the right to continue use of the Service as furnished; (ii) modify the Service to make it non-infringing, provided that it still substantially conforms to the applicable Documentation; or (iii) if AirPR, after using all commercially reasonable efforts, is unable to accomplish the foregoing remedies, terminate the Agreement and refund Company 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 AirPR, (ii) made in whole or in part in accordance with Company specifications, (iii) that are modified after delivery by AirPR, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Company continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Company’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by AirPR to be infringing, AirPR may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Company a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Company’s rights hereunder and provide Company a refund of any prepaid, unused fees for the Service. Notwithstanding anything to the contrary, in no event shall AirPR have any authority to agree to any financial or other liability of Company without Company’s prior written consent. The foregoing states the sole and exclusive indemnification liability of AirPR under this Agreement.
8.2 By Company. Company will defend AirPR against any third-party action claiming (a) any use of a Services by Company other than as permitted in this Agreement, or (b) AirPR’s use of Company materials, data and information as permitted in this Agreement infringe or misappropriate any third party’s proprietary rights, including intellectual property rights, and shall indemnify and pay all settlements entered into and damages awarded against AirPR to the extent incurred as a direct result of such action. Company’s obligations under this Section are conditioned upon Company having sole control of any such action, and upon AirPR notifying Company promptly in writing of the claim and giving Company all authority, information, and assistance necessary to settle or defend such claim. Notwithstanding anything to the contrary, in no event shall Company have any authority to agree to any financial or other liability of AirPR without AirPR’s prior written consent. AirPR may participate in the defense of any claims with counsel of its own choosing. The foregoing states the sole and exclusive indemnification liability of Company under this Agreement.
9. Data Privacy. Company agrees to comply with all applicable data protection and privacy laws and regulations in connection with Company’s and its Users’ use of the Services. To the extent that any Company Data or personally identifiable or private information of Users (“User Information”) provided to AirPR in connection with the Service is subject to any privacy laws or regulations, including those applicable to the European Union (which for the avoidance of doubt shall include the United Kingdom) including, without limitation the EU General Data Protection Regulation and EU e-Privacy Directive (collectively, “EU Data Protection Laws”), Company shall, prior to providing such Company Data or User Information to AirPR promptly notify AirPR in writing and Company accepts and agrees to the Data Processing Addendum set forth at airpr.com/legal-gdpr-dataprocessingaddendum. If Company does not accept and agree to the Data Processing Addendum with AirPR, then Customer represents and warrants that the Company Data and User Information is not subject to the EU Data Protection Laws. Company will indemnify and hold harmless AirPR 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 AirPR arising from or related to Company’s breach of the foregoing warranty or violation of the EU Data Protection Laws.
10. 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), 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 services 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 LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID TO AIRPR BY COMPANY 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 INDEMNIFICATION OBLIGATIONS, COMPANY’S payment obligations or breach by COMPANY of Section 5 (Proprietary Rights).
NEITHER AIRPR 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 AIRPR’S REASONABLE CONTROL; or (C) for any combination, operation or use of a SERVICE with technology or data not supplied by AIRPR for other than the intended purpose, or arising from any non-AIRPR modifications of a SERVICE OR REPORT, if the claim would not have arisen without such modification.
11. Third Party Content.
11.1 Proprietary Rights. Company acknowledges that the Service contains copyrighted and proprietary content, information and materials obtained under license from third parties and/or monitored by AirPR (“Third-Party Content”) from the following sources: (1) print, (2) digital/online, (3) social media, and (4) broadcast monitoring. Information provided through broadcast monitoring is also referred to in this Agreement as “Broadcast Content.” The providers of the Third-Party Content retain ownership of all proprietary rights in and to the Third-Party Content, including without limitation all intellectual property rights. Company acknowledges that certain Third-Party Content may only remain on AirPR’s servers for a limited period of time pursuant to AirPR’s agreements with its third-party providers. After expiration of that time, certain Third-Party Content may not be available for retrieval from the Service.
11.2 AirPR Not Responsible for Third-Party Content. Third-Party Content provided through the Services is provided “as is” without warranty of any kind. AirPR disclaims all representations, warranties and conditions with respect to Third-Party Content, expressed or implied, including without limitation any warranties of title or noninfringement and any implied warranties of merchantability, fitness or sufficiency for a particular purpose, or arising from the course of dealing between the parties or usage of trade. AirPR takes no responsibility and assumes no liability for the obligations of Third-Party Content provided through the Service. Company acknowledges and agrees that AirPR is only acting as a passive conduit for online distribution and publication of Third-Party Content from a third party. Company acknowledges and agrees AirPR is not responsible for the substance, text or subject of any Third-Party Content. AirPR does not imply, represent or warrant, by virtue of supplying information incorporating Third-Party Content, that AirPR holds or grants any license to use any text, video clips or graphics provided, including news mentions or links to such mentions. Company’s use of any text, video clips or graphics provided hereunder, other than in accordance with the terms set forth herein, shall be at Company’s sole risk and expense. AirPR does not represent or warrant that any specific source will be monitored by AirPR or represent that any amount of Third-Party Content will be delivered through the Services. AirPR reserves the right to change the sources that it monitors at any time. Certain sources may limit Company’s ability to view content or access links through the Services. UNLESS OTHERWISE PROVIDED IN THIS AGREEMENT, DOWNLOADING, REPRODUCTION, REDISTRIBUTION, OR REPUBLICATION OF THE THIRD-PARTY CONTENT IS SOLELY AT CUSTOMER’S OWN RISK. COMPANY AND ITS THIRD-PARTY PROVIDERS WILL NOT BE LIABLE FOR CUSTOMER’S SUBSEQUENT USE OR DISTRIBUTION OF THE THIRD-PARTY CONTENT.
11.4 Text and Video Clips. Unless otherwise authorized in this Agreement, Company may not (a) resell any text or video clips supplied hereunder (including any portion thereof); or (b) distribute or transfer, by any means whatsoever, any text or video clips received through the Services (or copies thereof), to any person, organization or institution other than Users. Company warrants that text or video clips provided to Company through the use of the Services will not be resold, republished or otherwise distributed to third parties in any form, including but not limited to through an intranet, extranet or internet site. Notwithstanding anything to the contrary in this Agreement, Company may, through the Services, post, in electronic format, text, reports or the like, received through the Services to an intranet site for access and use solely by Users.
11.5 Broadcast Content. AirPR provides Broadcast Content through partnerships with third-party providers for up to thirty (30) days after the original broadcast date, unless otherwise specified herein or permitted in the third party’s software. Notwithstanding anything in this Agreement to the contrary, Company and Users may: (1) use the Broadcast Content only for Company’s internal, research and/or business purposes only; (2) distribute the Broadcast Content only within Company’s organization in digital copy or link distribution through e-mail, as permitted by the third party’s software; (3) not publicly distribute, broadcast, transfer, display, or otherwise publicly exhibit any part of the Broadcast Content by any means, including posting clips to a public Web site on the Internet; (4) not resell, redistribute, download, or store Broadcast Content, other than as permitted in this Section; (5) not create derivative works from, copy and paste links, resell, reverse engineer or otherwise redistribute to third parties the Broadcast Content; or (6) alter, obscure, remove, change, obliterate or separate any identification, copyright, trademark, confidential or proprietary notices from the Service or the Broadcast Content. Company and Users must use best efforts to prevent unauthorized copying or distribution of the Broadcast Content. AirPR provides Company with information on subjects that Company selects from broadcast sources, and Broadcast Content is provided “AS IS.” AirPR will stream clips or links up to thirty (30) days from the original broadcast air date, unless Company purchases a “download” or a “stream.” Notwithstanding the foregoing, certain download or streaming functionality may not be available if such functionality is or becomes restricted by the third-party provider of such Broadcast Content or by law or by regulation. Company may access the text (or portions of the text) and video clips containing the Company queries through the Services. Using the Services’ functionality, Company may e-mail text and/or hyperlinks viewable to Company’s employees, agents, contractors or clients (in the case of agencies who use the Services on behalf of a client) solely for use in relation to Company’s or client’s (in case of agencies who use the Services on behalf of a client) internal business purpose. Additional rights to the Broadcast Content must be obtained from the rights owner directly. Company agrees to use reasonable efforts to prevent unauthorized copying, display, or distribution of the Broadcast Content, and unauthorized access to the Broadcast Content. Company shall comply with all laws and regulations applicable to Company’s use of the Broadcast Content.
11.6 News Monitoring with LexisNexis. Company agrees all access to and use of content made available by LexisNexis, a division of RELX Inc. (“LexisNexis”), through (or in connection with) the AirPR Service is provided for media monitoring and evaluation purposes only and is subject to the terms and conditions provided in the General Terms and Conditions for Use of the LexisNexis Services (and updates thereof) available online at www.lexisnexis.com/terms/general (the “General Terms”). The LexisNexis Terms shall be deemed modified to the extent necessary to permit access to the LexisNexis-provided Content through the functionality of the Services. Company further agrees the General Terms constitute and form a separate binding agreement between LexisNexis and Company, and LexisNexis has the right to assert and enforce this Agreement, including the General Terms, directly on its own behalf. LexisNexis’ consent to the terms of this Agreement is evidenced by providing Company with the means to access LexisNexis content. LexisNexis expressly disclaims any and all liability with regard to Company’s access to and use of any materials retrieved from third party websites (“Web Materials”) by and through AirPR’s Service. LexisNexis has not entered into a licensing agreement or linking agreement with the owners of the websites that provide Web Materials and makes no representation that it has the right to sublicense access to the Web Materials to Company. Company’s use of the Web Materials including any distribution or redistribution thereof is solely at its own risk. Company will indemnify and hold LexisNexis and its affiliates and its and their employees, officers, and directors (the “Covered Parties”) harmless from any loss or damage suffered by the Covered Parties as a result of a third-party claim brought against the Covered Parties as a result of Company’s use of Web Materials. LexisNexis and Company are independent entities and neither is acting on behalf of, or has any right to bind, the other for any purpose or in any way. LexisNexis shall not be responsible for any actions, operations or business of Company, including, without limitation, errors or omissions that may be introduced into LexisNexis Content by Company. Company agrees that it will not make any claim or take any action against LexisNexis for or in connection with the actions, activities, negligence, operations or business of Company. AirPR takes no responsibility and assumes no liability for the obligations of LexisNexis as well as any LexisNexis-provided Content accessed through the Services. Company agrees that AirPR is only acting as a passive conduit for online distribution and publication of LexisNexis-provided Content that has been ordered by Company from LexisNexis.
12.1 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.
12.2 No Third-Party Beneficiaries. This Agreement is made solely and specifically between and for the benefit of AirPR and Company, and 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.
12.3 Force Majeure. Nonperformance 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.
12.4 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 this Agreement without such consent in connection with any acquisition or change of control of the party or transfer by AirPR 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.
12.5 Governing Law; Jurisdiction. The rights of the parties hereunder shall be governed by the laws of the State of California, without giving effect to 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 and/or the Services.
12.6 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.
12.7 Severability. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement shall remain in full force and effect.
12.8 Entire Agreement. This Agreement, including the applicable Order Form(s) and all agreements referenced therein, constitutes the entire agreement between the parties with respect to the 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 Company will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement or an Order Form regardless of any failure of AirPR to object to such terms, provisions or conditions, even if such document is signed by the parties.
12.9 Amendment; Waiver. AirPR 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. Company should review these terms and conditions periodically for changes. Company’s continued use of the Service after any such change constitutes Company’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.