1. TERMS AND DEFINITIONS
1.1. YouScan Social Media Monitoring Service shall mean computer software YouScan, being a part of the Licensor’s hardware and software package that is accessible through the Website (hereinafter referred to as the Service) (certificate of state registration of software No.2015610779 issued on January 16, 2015).
1.2. Website shall mean the official website of the Licensor available at URL youscan.io, which, inter alia:
1.2.1. features the details of the Service;
1.2.2. specifies prices and fees for allowing access to the Service;
1.2.3. serves as an official method of notifying the Licensee of any amendments or modifications made to the Service by publishing respective information on the Website, as contemplated herein.
1.3. Licensee Account (Account) shall mean a user account, being a specific structure of data or information that collectively relate to the common Service element and individualized with login details assigned by the Licensor to the Licensee at the time of the latter’s registration with the Service.
1.4. Price Plan shall mean the amount of license fees payable for the license to use the Service, which shall depend upon the functions of the Service, number of topics being monitored, and period of time for which the license to use the Service is granted.
1.5. Application shall mean a document emailed by the Licensee to the Licensor (in an arbitrary form) setting forth its intent to access the System, Price Plan and expected date of provision of such access.
1.6. Service Use Authorization shall mean a document issued on a date that corresponds to the date on which the use of the Service commenced, and which represents a proof of the Service being used from the date of its execution, and authorizes one to demand that the license fees be paid for use of the Service from the date of execution of such authorization and until the date appearing in such authorization (for one-off payment of the license fee – one calendar year) or until one of the following events occurs (if license fees are paid on a monthly basis):
- a written notice of the account suspension is given, as prescribed by clause 4.6 hereof;
- either Party has given a written notice requesting termination hereof under clause 10.2 hereof;
- there is a delay in payment of the monthly fee for a specific calendar month (until the date when a written notice is given to the effect of license suspension (account blocking) by the Licensor) under clause 6.2 hereof (hereinafter in this Agreement and Annexes hereto referred to as the “Authorization”).
This Authorization shall constitute an integral part of the Agreement.
2. SCOPE OF AGREEMENT
2.1. The Licensor hereby undertakes to authorize the Licensee to use (i.e. grant an ordinary (non-exclusive) license for YouScan Social Medial Monitoring Service upon the terms and conditions set forth herein and Annexes hereto, in accordance with the selected Price Plan, and the Licensee undertakes to effect timely and full payments of license fees for the authorization to use the Service.
The authorization to use the Service hereunder shall include reproduction of the Service, which includes all and any possible activities related to the Service operation in accordance with its intended purpose, i.e. exercise remote access to the Service via the Internet, including enabling its personnel to access the Service remotely;
- access the Service and data generated as a result of Service operation, to make summary reports;
- export monitoring data in the formats supported by the Service;
- use such data at own discretion.
2.2. The Price Plan, period of time during which the Licensee is authorized to use the Service shall be agreed upon in the Annexes hereto, which are expressly made a part of this Agreement.
2.3. List of Price Plans:
Monitoring – set 3 (three) topics for the monitoring purpose;
Unlimited number of mentions and users; calculation of engagements; automatic text sentiment analysis; Smart Alerts; 1 automatic rule per topic.
Analytics Lite – set 5 (five) topics for the monitoring purpose;
Entire range of functions enabled by the “Analytics Lite” plan: multi-monitoring – any analytics, disaggregated by the available filters; advanced analytics by topic starters; automatic detection of business-related mentions; collection of historic data for the year; 5 automatic rules per topic
Analytics – set 10 (ten) topics for the monitoring purpose;
All functions available under the “Monitoring” plan plus: multi-monitoring – any analytics, disaggregated by available filters; advanced analytics by topic starters; automatic detection of business-related mentions.
Enterprise – set 25 (twenty five) topics for the monitoring purpose;
All function available under the “Analytics” plan plus:
API access; CRM integration; division of rights to access topics.
Any changes of the Price Plan shall be executed in the form of an Annex hereto and an authorization to such effect shall be executed, as required by clause 1.6 hereof.
2.4. The territory within which the Service may be used hereunder shall include all countries.
2.5. YouScan Social Media Monitoring Service is a product of the Licensor’s intellectual activities and protected by the copyright law. The Licensor hereby warrants and represents that it is in possession of the entirety of rights required to make this Agreement.
2.6. The license to use the Service is granted for the period of time specified in the authorization executed under clause 1.6.
3. REGISTRATION WITH THE SERVICE
3.1. The Licensee shall be authorized to use the Service by being allowed 24/7 access to the Service. To access the Service, the Licensee undertakes to register the Licensee account in accordance with the registration procedure used for the Website. Following registration of the Licensee Account on the Website, the Licensee shall be assigned unique login and password, which the Licensee shall use for authentication in the Service. Such login and password shall be emailed to the Licensee to the email address, indicated by the Licensee while completing registration of the Licensee Account.
4. GRANTING OF THE LICENSE. RIGHTS AND LIABILITIES OF THE PARTIES
4.1. The Service shall remain accessible on an uninterrupted basis from the date of granting the license to use the Service in the following fashion: throughout the period for which the license is granted, the Licensee shall use the Licensee Account to generate monitoring requests by typing in the requisite request parameters in the respective request fields accessible through the Licensee Account. The Service processes requests automatically. Request processing shall result in the display of monitoring data in the Licensee Account.
4.2. Rights and responsibilities of the Licensor:
4.2.1 The Licensor shall have the right at any time at its sole discretion to update the contents, functions or user interface of the Service. The Licensor shall not be liable to the Licensee for any modifications made to the Service. The Licensor shall have the right to inform the Licensee of some of the modifications made by publishing notices to such effect on the Website and/or emailing the same to the email address of the Licensee, specified at the time of its registration on the Website.
4.2.2 The Licensor warrants and represents that basic technical support will be provided to the Licensee in relation to the Service throughout the entire period of its use. Basic technical support is defined as advisory support provided by the Licensor’s personnel on the dedicated line of the Technical Support Desk (e-mail firstname.lastname@example.org) , which includes provision of information about the Service functions and ways of using the same, advice on how to configure topic settings, and other matters. Basic technical support services shall not be billed separately.
4.2.3 The Licensor shall have the right to have routine breaks in the Service accessibility, which shall at all times be deemed a part of the normal operation and shall not constitute a ground for reassessment of amounts paid by the Licensee. Routine breaks may, inter alia, serve the purpose of Service upgrades. No routine break may last longer than 8 hours per calendar month and shall take place at night time.
4.2.4 The Licensor shall have the right to place and the Licensee shall not object to placement of the Licensee logo (trademark) under “Our customers” on the Licensor Website.
4.2.5 The Licensor shall not be at any time liable for any unauthorized use of the Licensee Account by third parties on the Licensee end.
4.3. Rights and responsibilities of the Licensee:
4.3.1 The Licensee shall have the right to use the Service upon the terms and conditions and to the extent contemplated herein and Annexes hereto.
4.3.2 The Licensee may not and shall not disclose to third parties the Account access parameters provided to it by the Licensor, including, but not limited to, logins and passwords, or authorization tokens to access API. The Licensee shall be individually liable for keeping safe and confidential its logins and passwords, as well as for any losses that may occur as a result of unauthorized use of the Licensee Account in the Service. All and any activities carried out using the Licensee login and password shall be deemed carried out by the Licensee. The Licensee shall be solely liable toward third parties for all and any actions carried out using the Licensee login and password, and bear the risk of potential adverse effects both for itself and the Licensor.
4.3.3 It the Licensee has lost and/or disclosed its login and password to third parties, the Licensee shall advise the Licensor thereof.
4.3.4 The Licensee hereby acknowledges and agrees that all and any intellectual property rights, including the exclusive license to use the Service, trademark, service mark, or other products of intellectual activities posted on the Website, shall remain ownership of the Licensee. The Licensee shall not use the Service for any purposes other than those contemplated herein or Annexes hereto.
4.3.5 The Licensee hereby acknowledges that he/she has read, understood, and is aware of the key functions of the Service. The Licensee shall bear the risk of correspondence of the Service to its intents and needs. The Licensor shall not be in any way liable for any losses sustained as a result of misuse or inability to use the Service occurring through the fault of the Licensee. The Licensee has agreed that to access the Service it must have an Internet connection and an Internet data transmission rate that is high enough for the Service operation.
4.3.6 The Licensee shall not and may not do any of the following:
- copy the Service or any part thereof;
- modify the Service or any part thereof;
- decompile or otherwise modify the Service into a source code, or a part thereof;
- otherwise disclose the source code of the Service;
- otherwise change or modify the Service;
- use unauthorized modified versions of the Service, including without limitation, to create similar products and/or a competitive service or gain unauthorized access to the Service;
- otherwise modify the Service. Modification (conversion) is defined as any change of the Service, including its translation from one language to another;
- fake its IP address, or addresses used in other network protocols during data transmission;
- take any actions designed to disrupt the normal operation of the Service;
- take any actions to gain access to the data of other Service users;
- grant Service access to third parties on the Licensee end. Any assignment (transfer) by the Licensee to a third party shall be subject to the Licensor’s written consent;
- disclose to third parties the Account access parameters, including, but not limited to, logins, passwords, and authorization tokens to access API;
- authorize the use of, rent out, sell, lease, transfer ownership of, disseminate, host, disclose or make the Service available to any third parties, including but not limited to, to generate web links to the site hosting the Service, which incorporate the details of the Licensee connection to the Service, including but not limited to user names, passwords, cookies, mirroring, or wrapping of any part of the Service;
4.3.7 the Licensee warrants and represents that neither the Licensee, nor any person acting on behalf of the Licensee, will use the Service to encourage any customers of the Licensor to switch to competitive software or services.
4.4. If the Licensee has any claims as regards a poor quality of the Service, the Licensor shall not be liable for compensating the Licensee for any sums, nor shall it be liable for any damages sustained by the Licensee as a result of use or failure to use the Service. The Licensor hereby reserves the exclusive right to qualify a specific aspect inherent in the Service operation as a flaw (error, defect, etc.) or take one of the following actions:
4.4.1 make adjustments in the next version of the Service Pack;
4.4.2 apply hot fixes within a reasonable time after the flaw was detected, without waiting for the next version of the Service Pack to be released;
4.4.3 recognize such specific aspect inherent in the Service operation as unchangeable.
4.5. The Licensee shall be exempt from the obligation to furnish the Licensor with software usage reports.
4.6. The Licensee that has selected a Price Plan with an annual prepaid subscription shall have the right to suspend use of the Service. To suspend the Service use, the Licensee shall email a notice to this effect in an arbitrary form to email@example.com. The account will be blocked within 30 (thirty) days after such notice was emailed. The compensation that is due to the Licensor shall be reassessed and the Licensee shall be refunded for the entire period that it paid for but failed to use, starting from the 31st day after the notice was given.
If the use of the Service is suspended for plans with monthly, quarterly, or any other payments other than annual ones, no Service use payments shall be refunded.
5. LICENSOR FEES AND PAYMENTS
5.1. The Licensor fee for granting the license to the Service shall depend on the Price Plan chosen by the Licensee. The Licensor fee for granting license to the Service under a specific Price Plan appears on the Licensor Website under a relevant heading, and is made more specific in the Annex hereto.
5.2. The Licensee shall effect a full prepayment of the Licensor Fee to the Licensor. No activation of the account following expiration of the trial period shall be possible without such fee having been paid.
5.3. All and any payments hereunder shall be made using the Licensor details, appearing in the Licensor invoice. The obligations to pay shall be deemed discharged on the date of crediting of funds to the settlement account of the Licensor.
6. LIABILITY OF THE PARTIES
6.1. For their default on or wrongful performance of their obligations hereunder, the Parties shall be liable in accordance herewith and with the Annexes hereto, and, to the extent not governed hereby and by the Annexes, in accordance with the applicable laws.
6.2. The Licensor shall be entitled to suspend the license (block the account), should the payment deadline provided for herein or in the Annexes be missed by more than 5 (five) days. Blocking of the account shall not result in termination hereof or of the Annexes hereto. The license fee shall not be payable for the period when the account is blocked.
6.3. Should either Party fail to meet the deadlines for performance of the obligations as provided for herein, such Party shall, upon the other Party’s written claim, pay to the other Party a penalty of 0.1 (zero point one) percent of the value of obligations it failed to perform for each day of delay, but anyway no more than 10% of the value of non-performed obligations. The payment of penalty shall not release the Parties from performance of obligations hereunder and under the Annexes hereto.
6.4. The Licensor shall in no event be liable for the following:
a) any action/omission that directly or indirectly resulted from any action/omission by the Licensee and/or third parties acting on behalf of the Licensee;
b) any indirect loss and/or lost profit of the Licensee and/or third parties acting on behalf of the Licensee irrespective of whether the Licensor could predict such losses;
6.5. The Licensee shall make sure the actions it undertakes as part of the Service are compliant with the applicable law. Should the Licensee’s actions undertaken through the Service prove to become a ground for law enforcement and/or third parties to present any claims against the Licensor, the Licensee shall, on its own, settle such claims and compensate for the losses caused to the Licensor thereby.
6.6. The total amount of Licensor’s liability hereunder, including any penalties (penalty interest, forfeits) and/or compensated losses under any lawsuit or claim, shall be limited to the consideration hereunder payable by the Licensee to the Licensor in accordance herewith.
6.7. Should there be any breaches of the law and upon receipt of relevant orders from law enforcement or competent governmental authorities, the Licensor reserves the right to suspend the Licensee’s access to the Service by giving a written notice to that effect to the Licensee stating the breaches so identified along with the requirement to remedy them. Should the Licensee fail to remedy the breaches within the period specified in the notice, the Licensor shall be entitled to delete the Licensee’s Account without recalculating the Licensor’s fees or compensating for any Licensee’s losses.
6.8. Should the Licensee infringe any provision hereof and/or of the applicable law by using the Service, the Licensor shall be entitled to unilaterally terminate access to the Service out of court until the Licensor remedies such breaches, or to terminate this Agreement by giving a relevant notice to that effect to the Licensee from the date specified therein without recalculating the Licensor’s fees or compensating for any Licensee’s losses.
6.9. The Licensor shall reimburse, defend the hold the Licensee harmless against any amounts payable under a court judgment, ruling or settlement should there be any third party claims that the use of the Service constitutes a breach of its patent rights, copyright, or rights to a trademark and results in misappropriation of its trade secret in the jurisdiction where a license was issued with respect to the Service.
7. FORCE MAJEURE
7.1. The Parties shall be exempt from liability for any default on or improper performance of their obligations hereunder and under the Annex, whether in part or in full, provided that such default was caused by force majeure occurring after the date hereof or of the Annex hereto that the Parties could not reasonably predict nor prevent. The above circumstances in the context hereof shall include natural disaster, fire, war or military actions, enactments by government or governmental authorities, power outages, malicious software, interrupted communications resulting in the Parties’ inability to perform their obligations or other actions beyond the reasonable control of the Parties.
7.2. In case of a failure to perform or improper performance hereof resulting in the circumstances outlined in 8.1 hereof, the affected party shall, within 3 (five) business days following its occurrence, give the other Party a notice of such circumstances in writing, and append respective documentary evidence to this effect issued by competent governmental authorities. The notice shall describe the nature of force majeure, the extent to which it affects the Party’s performance of its obligations hereunder and under the Annex hereto, and the period of their performance.
7.3. A failure to give such notice in a timely manner shall render the Party unable to claim force majeure
7.4. In case of the circumstances outlined in 8.1 hereof, the affected party shall within 3 (five) business days give the other Party a notice of such circumstances in writing. The notice shall specify the time from which the party is proposing to resume its performance hereunder and under the Annexes hereto.
7.5. Should any of the circumstances outlined in 8.1 hereof affect the period of performance hereof and of any Attachment hereto, such period shall be extended by the time during which such circumstances continue. Should the circumstance continue for more than 3 (three) consecutive months, the Parties shall be entitled to extend the period hereof and of the Annexes hereto by the relevant timeframe or terminate this Agreement and the Annexes hereto by executing a termination agreement signed by their duly authorized representatives. Should the Agreement and Annexes hereto be terminated, the parties shall make complete mutual settlements.
7.6. In connection with the use of computer or other hardware, telecommunication channels and/or computer software, the rights to which are held by third parties, the Parties agree that in the course of providing Services hereunder the Licensor shall be liable for any delays, breaks, direct or indirect damage or losses resulting from defects in any electronic or mechanical hardware or computer software, or for other reasonable technological reasons, as well as from any action or omission by third parties, data transmission or connection issues, or power outages occurred not due to the Licensor’s fault.
8.1. During the period hereof as well as five years after termination hereof and of all the Annexes hereto, the Parties shall keep confidential the terms and conditions hereof, as well as any other information and data received from each other in connection with the performance hereof (including personal data), except for any information and data in public domain (the confidential information). Neither Party shall disclose the confidential information to third parties without prior written consent of the Party that provided such confidential information.
8.2. The Parties shall make every reasonable effort to protect each other’s confidential information from unauthorized access by third parties, including: transmit the confidential information using secure communication channels only; store the confidential information only in the locations intended for that preventing access by third parties; limit access to confidential information to their employees to whom it is provided on a need-to-know basis.
8.3. The Parties undertake to meet all and any conditions relating to the processing, storage and use of personal data received from the other party in the course of performance hereof according to applicable laws.
8.4. The Parties shall promptly notify each other of any disclosures they made or threats of disclosure, illegal acquisition or use of confidential information by third parties they became aware of.
8.5. The Parties shall not be entitled to unilaterally discontinue protection of confidential information provided for herein, including in case of their reorganization or liquidation according to the civil law.
8.6. For the purposes hereof, a disclosure of confidential information shall refer to action or omission by a Party hereto leading to third parties becoming aware of the confidential information without the consent from the owner of the confidential information. In this case the form of disclosure of confidential information to third parties (oral, written, using technical equipment, etc.) shall not matter.
8.7. Provision of confidential information upon a legal requirement of law-enforcement or other competent governmental authorities or executives in the events and according to the procedure established by the applicable law shall not constitute a breach of confidentiality obligations.
8.8. Should the confidential information be disclosed to the above authorities and/or persons, the disclosing Party shall notify in writing the owner of the confidential information of the disclosure specifying the contents thereof, and the authority to which the information was disclosed within two business days from the date of disclosure.
8.9. The Parties shall be entitled to disclose the existence of this Agreement and Annexes hereto, the terms and conditions hereof, except for financial ones, to their partners, clients and other persons, subject to making a confidentiality agreement with such persons (executed in a separate document or as part of another agreement) that contains such parties’ obligation to protect the confidential information under the conditions that are no less rigid than those set out herein.
8.10. Should the Parties fail to perform the obligations contained in this section, the defaulting Party shall reimburse all the losses caused by such breach, including lost profit, within 5 (five) business days from receipt of a respective written claim from the other Party.
9. DISPUTE RESOLUTION
9.1. Should there be any dispute or discrepancy between the Parties in performance hereof and the Annexes hereto, the Parties shall resolve them by presenting claims to each other out of court. The period for replying to a complaint shall be 10 (ten) business days from its receipt by the Party.
10. PERIOD OF AGREEMENT
10.1. This Agreement becomes effective upon signing and shall continue in effect until it is terminated by either Party or until the Parties have fully performed their obligations hereunder and under the Annexes hereto.
10.2. Each Party shall be entitled to unilaterally terminate this Agreement and Annexes hereto by giving a written notice to that effect to the other Party at least 30 (thirty) days prior to the expected termination date. Such written notice shall be emailed to firstname.lastname@example.org.
11. FINAL PROVISIONS
11.1. The suspension of the Service according to clause 4.6 shall not result in termination hereof.
11.2. All and any amendments hereto shall be integral part hereof and shall only be valid if executed in writing and signed by authorized representatives of the Parties. The Annexes executed by the Parties in connection herewith shall contain a reference to this Agreement and specify the date of the document.
11.3. The Licensee hereby consents to collection, storage and processing by the Licensor of the personal data of its employees and other persons with access to the System for the purposes of performance of the obligations provided for herein and in the Annexes hereto.
11.4. Unless otherwise stipulated herein, the Parties may exchange data in connection herewith in writing only. Written notices of the Parties (including claims, notifications, etc.) shall be given by post, fax, email, courier, or delivered in hand to the Party (its duly authorized representative) or using other methods that enable to record the delivery (date, time) and sender of the notice. In order to check whether a hard copy notice is authentic, it shall be sufficient to visually, without the use of any special skills or hardware, compare the signature specimen of the Parties’ signatories and seal impressions appearing on the documents against those available to the Parties. Emails shall be deemed delivered upon receipt of a relevant confirmation evidencing the email receipt by the other Party.
11.5. For the purposes hereof, business days shall refer to business days on the basis of a five-day business week (all the week days other than Saturday and Sunday), which days are not official public holidays according to the applicable law.
11.6. Should there be any change in registered address and/or bank details of the Parties, the Party whose details have changed shall notify the other Party to that effect within 5 (five) business days from such changes becoming effective.
11.7. All and any matters not provided for herein shall be governed by the applicable law.
11.8. This Agreement has been executed in the English language, with one counterpart for each party.