POSTANO Terms of Service
These Terms of Service set forth the terms under which TigerLogic Corporation (“TigerLogic”) will provide the Postano Services (defined below) to the customer (“Customer”) identified on a Postano order form countersigned by authorized representatives of both TigerLogic and Customer (an “Order”).
The "Postano Platform" allows Customer to gather text, music, data, graphics, photos, video, commentary and other content (“Content”) from social media feeds that Customer selects (“Social Media Feeds”) and to curate, select, present, manage, distribute, perform and display such Content, along with Content provided by Customer or created on Customer’s behalf (“Customer Content”), for Customer’s location-based, digital and mobile marketing and promotional activities. The “Postano Services” includes all components and features of the Postano Platform provided pursuant to Customer’s Orders, including all user manuals or other documentation provided in connection therewith (“Documentation”).
Subject to Customer’s compliance with these Terms of Service and each Order (collectively, the “Agreement”), TigerLogic shall make the Postano Services available to Customer during the Order Term (defined in the “Term” section below) of each Order. TigerLogic shall have the right at its discretion to modify the Postano Services, including adding or subtracting features or functionality, at any time without notice to Customer. In the event TigerLogic’s modification of the Postano Services substantially reduces the functionality or features provided to Customer, Customer’s sole remedy shall be to terminate the applicable Order or the Agreement as described in the “Termination” section below and receive a refund of the Fees paid by Customer, pro-rated based on the number of months remaining in the Order Term of the applicable Order versus the total number of months in such Term.
“Users” means individuals authorized by Customer to use the Postano Services, each of which must have a unique username and password (an “Account”). The Postano Services may be accessed and used by no more than the total number of Users and shall include no more than the total number of Streams and Visualizations set forth on the Order. If Customer wishes add additional Users, Streams or Visualizations, please contact TigerLogic. Accounts cannot be shared with or used by more than one User; however, designated Users may be replaced with other designated Users. Customer shall immediately notify TigerLogic of any breach or unauthorized use of any Account. Customer is solely responsible for keeping all Account passwords in its or its Users’ possession or control secure and for all activities that occur through Customer’s Accounts, including the activities of others and regardless of whether such activities are authorized. Customer shall maintain up-to-date and accurate information pertaining to its Accounts, including contact information and authorized User information.
Selection of Feeds and Content
Customer is solely responsible for the selection of Social Media Feeds and all Content collected, accessed, published and used by Customer through the Postano Services. The access to and use of Social Media Feeds and Content are subject to the terms and conditions of the companies who operate such Social Media Feeds and applicable laws. It is the Customer’s responsibility to review and comply with the terms and conditions pertaining to each Social Media Feed and its associated Content prior to selecting such Social Media Feed and Content for use in connection with the Postano Services. Customer may change its selections at any time. In all cases, however, Customer's last selections recorded by the Postano Services shall be conclusive in the event of any dispute concerning any Customer selection.
License to the Postano Services
Customer shall have a limited, revocable, non-transferable (except as provided in the “Assignment” section), non-exclusive, worldwide license to use the Postano Services as described in the Agreement and the Documentation. All rights not expressly granted to Customer are reserved by TigerLogic.
Customer shall (a) use the Postano Services only for Customer’s business purposes and as permitted by the Agreement; and (b) be responsible for its Users’ compliance with the Agreement. Customer will not (i) use the Postano Services in any illegal or unlawful manner or for any illegal or unlawful purpose; (ii) use the Postano Services in a manner which is intended to harm TigerLogic or the Postano Platform; (iii) reverse engineer, disassemble, reconstruct, or decompile any object code relating to the Postano Platform; (iv) use or launch any automated system, including without limitation, "robots," "spiders," or "offline readers," to access the Postano Platform; or (v) rent, lease, loan, trade, sell/re-sell or otherwise charge any party for access to the Postano Platform. Customer shall comply with all applicable international, federal, state, and local laws, rules, regulations, directives and governmental requirements relating to its use of the Postano Services and all Content.
Obligation to Pay
Customer shall pay TigerLogic the fees set forth in all Orders (“Fees”). If TigerLogic has the legal obligation to pay or collect taxes for which Customer is responsible, such taxes shall be included on invoices to Customer and Customer shall pay such taxes. If Customer fails to pay any undisputed Fees when payment is due, TigerLogic shall have the right to suspend delivery of all or a portion of the Postano Services; provided that TigerLogic has supplied Customer with prior written notice of nonpayment and ten (10) days' opportunity to cure. If TigerLogic pursues collection efforts against Customer due to Customer's failure to pay Fees due, Customer shall pay TigerLogic’s reasonable costs of collection, including any attorneys' fees and costs related thereto.
The term of each Order shall commence on the date specified in the Order (the "Order Effective Date") and shall remain in effect for one (1) year from the Order Effective Date (unless a different term is set forth in the Order) (the "Order Term"). The term of the Agreement commences on the first Order Effective Date and shall continue until all of Customer's Orders have expired or been terminated in accordance with these Terms of Service and the applicable Order (the "Term").
Either party may terminate the Agreement or any outstanding Order (a) if the other party is adjudicated bankrupt or otherwise seeks to avoid its performance obligations under applicable bankruptcy or insolvency laws; or (b) upon the occurrence of a material breach hereof by the other party if such breach is not cured within thirty (30) days after receipt of written notice from the non-breaching party identifying the matter constituting the material breach. TigerLogic shall have the right to immediately terminate any Order upon notice in the event Customer breaches the “Use of the Postano Services” section or the “Confidentiality” section.
In the event of the termination or expiration of the Agreement for any reason, (a) all licenses granted under the Agreement shall terminate automatically; (b) all then-current Orders shall terminate; (c) each party shall return to the other party or, pursuant to the other party’s written instructions, destroy, all materials in its possession or control containing Confidential Information (defined in the “Confidentiality” section) of the other party; (d) unless such termination resulted from a material, uncured breach by TigerLogic, all Fees and expenses payable under all Orders shall become immediately due and payable; and (e) the following Sections shall survive: “Restrictions”, “Termination”, “Ownership”, “Usage Data”, “Representations and Warranties”, “Indemnification”, “Right to Substitute”, “Limitation of Liability”, “Confidentiality”, and “General”.
In addition to any other rights it may have, TigerLogic reserves the right to suspend Customer's access to and/or use of the Postano Services or any portion thereof if TigerLogic reasonably determines that such suspension is necessary to comply with applicable law.
As between the parties, (a) TigerLogic owns and shall retain all right, title and interest in and to the Postano Platform, including all intellectual property rights therein; and (b) Customer owns and shall retain all right, title and interest in and to all Customer Content.
Customer hereby grants TigerLogic a limited, revocable, non-transferable (except as provided in the “Assignment” section), non-exclusive, royalty-free, worldwide license to perform all such acts with respect to the Customer Content as are necessary for TigerLogic to provide the Postano Services in accordance with this Agreement. All rights in the Customer Content not expressly granted to TigerLogic are reserved by Customer.
TigerLogic shall have the right to use all data collected by the Postano Services (“Usage Data”) for TigerLogic’s internal business purposes and marketing and promotional purposes; provided that TigerLogic may only disclose such Usage Data to third parties in the aggregate and not in a manner so that it would be attributable specifically to Customer.
Representations and Warranties
TigerLogic represents and warrants that it owns or controls the Postano Platform. Customer represents and warrants that (a) it owns all Customer Content or has obtained all rights, approvals, licenses, consents and permissions as are necessary to grant the licenses to the Customer Content granted by it to TigerLogic under this Agreement; and (b) the Customer Content does not, and shall not, infringe, violate or misappropriate any third party's rights, including any intellectual property rights.
Customer acknowledges and agrees that TigerLogic does not control any Social Media Feeds or Content and does not make any promise, warranty, or other assurance with respect thereto.
EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, TIGERLOGIC EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING (A) ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, WORKMANLIKE QUALITY, NON-INFRINGEMENT, TITLE, PERFORMANCE, SUITABILITY, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE; (B) ANY WARRANTIES RELATING TO THE PERFORMANCE OF THE POSTANO SERVICES OR TIGERLOGIC’S PERFORMANCE OF ANY ADDITIONAL SERVICES; (C) WITH RESPECT TO ANY RESULTS TO BE OBTAINED FROM THE POSTANO SERVICES; (D) THAT THE POSTANO SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; (E) WITH RESPECT TO ANY CONTENT OR SOCIAL MEDIA FEED OR THE ACCESS TO OR USE THEREOF; OR (F) WITH RESPECT TO THE ACCURACY, QUALITY, RELIABILITY, SUITABILITY, OR EFFECTIVENESS OF ANY DATA, RESULTS, CONTENT OR OTHER INFORMATION OBTAINED OR GENERATED BY CUSTOMER THROUGH ITS USE OF THE POSTANO SERVICES. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE POSTANO SERVICES ARE PROVIDED ON AN "AS IS" BASIS ONLY AND CUSTOMER USES THEM AND ALL CONTENT AT ITS OWN RISK. NO ADVICE OR INFORMATION OBTAINED BY CUSTOMER FROM TIGERLOGIC SHALL CREATE ANY REPRESENTATION OR WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE OR ANY ORDER.
TigerLogic shall indemnify, defend and hold harmless Customer and its employees, officers, directors and agents from and against any and all third party claims, costs, losses, demands, suits, actions, liabilities, damages, and expenses (including reasonable attorney’s fees and costs of investigation) arising from any claim: (a) that the Postano Platform (but specifically excluding claims with respect to any Content or Social Media Feeds) infringe on or misappropriate any intellectual property or other rights of any third party; or (b) arising from TigerLogic’s breach of the “Confidentiality” section. The foregoing indemnification obligation shall not apply to the extent that any demand for indemnification arises as a result of or is caused by (i) Customer’s use of the Postano Services in a manner not expressly authorized by these Terms of Service or any Order; or (ii) Customer’s use of the Postano Services in combination with other products, equipment or software not supplied, used or authorized by TigerLogic.
Customer shall indemnify, defend and hold harmless TigerLogic and its affiliates and subsidiaries and its and their employees, officers, directors and agents from and against any and all claims, costs, losses, demands, suits, actions, liabilities, damages, and expenses (including reasonable attorney’s fees and costs of investigation) arising from or relating to the actual or alleged violation or infringement by any Customer Content of any rights of any third party, including any intellectual property rights, privacy rights or rights of publicity.
Each party’s respective indemnification obligations under this Section are subject to the party requesting indemnification (the “Indemnified Party”): (a) notifying the other party promptly in writing of any action for which indemnification is sought; (b) giving the other party sole control of the defense thereof and any related settlement negotiations (provided however that the Indemnified Party shall not be required to pay any amount or take any action with regard to such settlement); and (c) reasonably cooperating in such defense. The Indemnified Party may not settle any such claim in any manner that binds the other party without the other party’s prior written consent. Notwithstanding the foregoing, the Indemnified Party may, at its own expense, participate in the defense and settlement of any such claim that is subject to indemnification.
Right to Substitute
In the event that a claim subject to TigerLogic’s indemnification obligations in the “Indemnification” section is made or threatened, or TigerLogic reasonably believes that Customer’s use of the Postano Services may be infringing, TigerLogic at its option and expense, may either (a) secure for Customer the rights necessary to continue to use the affected Postano Services; (b) modify the affected Postano Services so that they become non-infringing; or (c) replace the potentially infringing portion of the Postano Services with a functionally equivalent non-infringing product. If, in TigerLogic’s reasonable discretion, none of the foregoing alternatives are reasonably available, TigerLogic may immediately terminate the Agreement or any Order.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER ANY THEORY OF LIABILITY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, WHETHER IN CONTRACT, IN TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT) OR OTHERWISE, RESULTING FROM ITS PERFORMANCE OR ANY FAILURE TO PERFORM (INCLUDING LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
WITH THE EXCEPTION OF A PARTY’S OBLIGATIONS UNDER THE “INDEMNIFICATION” SECTION, UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER FOR DAMAGES (OR AMOUNTS) IN EXCESS OF THE TOTAL FEES PAID AND/OR PAYABLE FOR THE APPLICABLE POSTANO SERVICES FOR THE FULL THEN-CURRENT ORDER UNDER WHICH THE INCIDENT GIVING RISE TO THE CLAIM HEREUNDER AROSE. UNDER NO CIRCUMSTANCES WILL TIGERLOGIC OR ITS SUBSIDIARIES OR AFFILIATES HAVE ANY LIABILITY FOR OR IN CONNECTION WITH ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF USE OF, OR RELIANCE ON ANY SOCIAL MEDIA FEEDS OR CONTENT.
TigerLogic may, from time to time, inform Customer of third-party services that can be used in connection with the Postano Services. Customer's use of any third-party service in connection with the Postano Services, and any terms, conditions, representations and/or warranties associated with such use, are solely between Customer and such third-party service provider. TIGERLOGIC makes no representation or warranty with regard to any such third-party service, and TIGERLOGIC shall not be responsible to Customer in any manner for any such third-party service. TigerLogic does not, unless otherwise expressly set forth in writing, provide maintenance or support for third-party services.
Each party agrees not to disclose the other party's Confidential Information without its prior written consent. "Confidential Information" includes, without limitation: (a) all intellectual property; (b) financial information (including pricing) and business information; and (c) any other information designated in writing as "Confidential" or that by its nature should be considered confidential. Confidential Information does not include (i) Content; (ii) information that has become publicly known through no breach by Customer or TigerLogic of these confidentiality obligations; or (iii) information that is independently and lawfully developed or obtained without access to Confidential Information, as evidenced in writing.
TigerLogic shall have the right to identify Customer as a customer and to use Customer's logo in TigerLogic's general marketing materials and websites; provided that TigerLogic complies with Customer’s trademark guidelines provided to TigerLogic.
Unless otherwise specified on the Postano Services, all notices provided by Customer to TigerLogic shall be in writing and delivered either by hand, certified mail (return receipt requested, postage pre-paid) or nationally recognized overnight delivery service (all delivery charges pre-paid) and addressed to TigerLogic at the address set forth on the applicable Order. TigerLogic may provide notices to Customer by email or by posting such notices via the Postano Platform user interface. Customer agrees that all agreements, notices, disclosures, and other communications that TigerLogic provides to Customer electronically satisfy any legal requirement that such communications be in writing. In addition, Customer hereby consents to TigerLogic sending Customer email or other communications related to the Postano Services and other TigerLogic products and services from time to time.
TigerLogic shall not be liable to Customer for any failure to perform or any delay in performance under this Agreement if such failure or delay arises from any act beyond TigerLogic’s control, such as natural disasters or other acts of God, wars, fires, riots, strikes, lockouts, labor disputes, accidents, malicious damage caused by a third party to technology deployed or used by TigerLogic, or the breakdown, failure or malfunction of any telecommunications, computer or other electrical, mechanical or technological service or system (“Force Majeure Event”). TigerLogic shall give prompt written notice to Customer of any Force Majeure Event and shall work diligently to resolve such event. In the event a Force Majeure Event continues for more than sixty (60) days, Customer shall have the right to terminate the applicable Order upon written notice.
TigerLogic and Customer are independent contractors and nothing herein shall be construed to create a partnership, joint venture or agency relationship. Neither party may assign the Agreement or any of its rights or delegate any of its duties hereunder without the prior written consent of the other, except that each party may assign its rights and obligations hereunder without the other party's prior written consent in the case of a merger, acquisition or other change of control, and in such event, the terms of the Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
These Terms of Service and all Orders shall be governed by the laws of the state of California applicable to contracts entered into and wholly to be performed therein. Any and all disputes arising out of or related hereto or performance hereof, shall be brought exclusively in the federal or state courts in Orange County, California and the parties hereby waive any objection thereto, including forum non conveniens. Customer and TigerLogic each waive any right to a jury trial in connection with any and all disputes arising out of or related to these Terms of Service or any Order.
Each party shall comply with all applicable United States and international export control laws and regulations. Any Order may be executed in counterparts, including without limitation by the execution of an Order that refers to and incorporates these Terms of Service, all of which are considered one and the same agreement. Delivery by facsimile or other electronic transmission (including via email in “portable document format” or online acceptance) are all as effective as physical delivery of an originally executed copy hereof.
These Terms of Service including any Orders entered into in connection herewith (all of which are incorporated herein by reference), constitute the entire understanding of the parties hereto with respect to the matters contemplated hereby, supersedes all previous agreements between the parties concerning the subject matter hereof and cannot be amended except by a writing signed by authorized representatives of both parties. No party hereto has relied on any statement, representation or promise of any party or representative thereof except as expressly set forth herein. If any term, provision, covenant or condition hereof is held invalid or unenforceable for any reason, the remainder of the provisions will continue in full force and effect. The parties further agree to substitute for the invalid provision a valid provision that most closely approximates the intent and economic effect of the invalid provision. The waiver by either party of a breach or a default of any provision shall not be construed as a waiver of any succeeding breach of the same or any other provision.
With respect to use of the Postano Services by or on behalf of the federal government, the technical data and software rights related to the Postano Services include only those rights and licenses provided pursuant hereto and are provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202 (Commercial Computer Software or Computer Software Documentation). Any instruments, including purchase orders, work orders, acknowledgments and vendor registration forms not signed by both parties ("Instruments") shall not add to, supersede or modify, the terms hereof and in the event any term of an Instrument purports to add to, supersede or modify any term hereof, such term of the Instrument shall be void and without effect. To the extent of any conflict or inconsistency between these Terms of Service and any Order, statement of work or any other document related to the parties’ obligations hereunder, these Terms of Service shall govern unless otherwise expressly agreed by the parties in writing.