Madson App Terms and Conditions

 

PLEASE READ THESE TERMS AND CONDITIONS (“TERMS”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY Chief Brand Company, LLC. (“MADSON APP”). BY SUBMITTING AN ONLINE OR PAPER ORDER FORM WHICH REFERENCES THESE TERMS AND IS ACCEPTED BY MADSON APP (AN “ORDER FORM”), YOU OR THE ENTITY THAT YOU REPRESENT (“CLIENT”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THE SERVICES AGREEMENT CONSISTING OF SUCH ORDER FORM AND THESE TERMS (THE “AGREEMENT”) WITH RESPECT TO THE SERVICES BEING PROVIDED BY MADSON APP. IF A SEPARATE SIGNED WRITTEN AGREEMENT WITH RESPECT TO THE SERVICES EXISTS BETWEEN CLIENT AND MADSON APP, THE TERMS OF THAT SIGNED WRITTEN AGREEMENT (EXCLUDING THE PRE-PRINTED TERMS OF ANY PURCHASE ORDER, CONFIRMATION OR SIMILAR DOCUMENT, WHICH WILL HAVE NO EFFECT AND WILL NOT BE CONSIDERED AGREED TO BY MADSON APP) SHALL TAKE PRECEDENCE OVER THIS AGREEMENT, AND YOU ACKNOWLEDGE THAT CLIENT IS BOUND BY THE TERMS OF THAT SIGNED WRITTEN SERVICES AGREEMENT.  PROVISION OF THE SERVICES IS CONDITIONED ON, AND CLIENT’S INSTALLATION OR USE OF THE SERVICES SHALL CONSTITUTE, CLIENT’S ASSENT TO THE TERMS OF THIS AGREEMENT OR OF SUCH EXISTING SEPARATE WRITTEN AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT SUBMIT AN ORDER FORM, AND YOU WILL HAVE NO RIGHT TO USE THE SERVICES. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS TO THE EXCLUSION OF ALL OTHER TERMS.

1. Order Forms; Access to the Service

Upon mutual execution (or online submission that is accepted by Madson App), each Order Form shall be incorporated into and form a part of the Agreement. Subject to Client’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on the applicable Order Form) Madson App grants Client the right and license to access and use the services specified in each Order Form (collectively, the “Service,” or “Services”) during the applicable Order Form Term (as defined below) for the internal business purposes of Client, only as provided herein and only in accordance with Madson App’ applicable official user documentation (the “Documentation”). The Order Form may specify certain limitations or restrictions on the Client’s use of the Services (including, without limitation, the number of orders over a designated timeframe, integrated channels, users or other services and features) (“Limits”), and it is Client’s sole responsibility to monitor its usage in order to comply with such Limits.

1. Onboarding Assistance

Upon payment of any applicable fees set forth in each Order Form, Madson App agrees to use reasonable commercial efforts to provide standard implementation assistance for the Service only if and to the extent such assistance is set forth on such Order Form (“Onboarding Assistance”). If Madson App provides Onboarding Assistance in excess of any agreed-upon hours estimate, or if Madson App otherwise provides additional services beyond those agreed in an Order Form, Client will pay Madson App at its then-current hourly rates for consultation.

1. Support; Service Levels

Madson App will use reasonable efforts to make the Service available 24 hours a day, 7 days a week, except for emergency maintenance, planned down-time for maintenance, if ordered by a law enforcement or government agency or if Madson App believes, in its sole discretion, (a) an interruption may be required for security or emergency-related purposes, or by applicable law or (b) that Client’s use of the Service poses an unreasonable risk to Madson App or a Madson App customer.

1. Service Updates

From time to time, Madson App may provide upgrades, patches, enhancements, or fixes for the Services to its customers generally without additional charge (“Updates”), and such Updates will become part of the Services and subject to this Agreement; provided that Madson App shall have no obligation under this Agreement or otherwise to provide any such Updates. Client understands that Madson App may cease supporting old versions or releases of the Services at any time in its sole discretion; provided that Madson App shall use commercially reasonable efforts to give Client sixty (60) days prior notice of any major changes. For clarity, Madson App may also offer new features for an additional fee, and Client may subscribe to such new features by executing a new Order Form.

1. Ownership; Feedback

As between the parties, Madson App retains all right, title, and interest in and to the Services, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Madson App for the purposes of this Agreement, including any copies and derivative works of the foregoing. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. Client may from time to time provide suggestions, comments or other feedback to Madson App with respect to the Service (“Feedback”). Feedback, even if designated as confidential by Client, shall not create any confidentiality obligation for Madson App notwithstanding anything else. Client shall, and hereby does, grant to Madson App a non exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose. Nothing in this Agreement will impair Madson App’ right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Client may develop, produce, market, or distribute.

1. Fees; Payment

Client shall pay Madson App fees for the Service as set forth in each Order Form (“Fees”). Fees shall be invoiced as specified in an Order Form and are payable in U.S. dollars within fifteen (15) days from date of invoice, or what is specified on the Order Form. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. Client shall be responsible for all taxes associated with the Services (excluding taxes based on Madson App’ net income). All Fees paid are non-refundable and are not subject to set-off. If Client chooses to upgrade or downgrade the level of Service, Client may be required to execute a new Order Form and different fees and features may apply. Madson App may, in its discretion, increase Fees at the beginning of each renewal period; provided that, Madson App provides Client with notice of such increase at least forty-five (45) days prior to the beginning of the applicable renewal period.

If Client exceeds the Limits, Client will be automatically charged additional Fees.

If the Client makes payment by credit card, Client hereby authorizes Madson App to charge Client’s credit card at the expiration of Client’s free trial period, if any, and on Client’s invoice date until this Agreement is terminated. For clarity, an upgrade from any free version of the Service to a paying version will end Client’s free trial period, and Client will be billed for its Initial Order Form Term immediately upon such upgrade.

1. Restrictions

Except as expressly set forth in this Agreement, Client shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Service; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service; (iv) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof; (v) use the Services for time sharing or service bureau purposes; (vi) use the Service to build an application or product that is competitive with any Madson App product or service; (vii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; or (viii) bypass any measures Madson App may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service). Client is responsible for all of Client’s activity in connection with the Service, including but not limited to uploading Client Data (as defined below) onto the Service. Client (a) shall use the Service in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Client’s use of the Service (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (b) shall not use the Service in a manner that violates any third party intellectual property, contractual or other proprietary rights.

Client acknowledges and agrees that the Service may operate on or with or use services operated or provided by third parties (“Third Party Services”). Madson App is not responsible for the operation of any Third Party Services nor the availability or operation of the Service to the extent such availability and operation is dependent upon Third Party Services. Madson App does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Client and a third party provider is solely between Client and such third party provider and is governed by such third party’s terms and conditions. Third party provider is not responsible to provide support services in connection with the Service.a

1. Confidentiality; Client Data; Publicity

Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).

The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (i) to give access to such Proprietary information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order.

For purposes of this Agreement, “Client Data” shall mean any data, information or other material provided, uploaded, or submitted by Client to the Service in the course of using the Service. Client shall retain all right, title and interest in and to the Client Data, including all intellectual property rights therein. Client, not Madson App, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Client Data. Madson App shall use commercially reasonable efforts to maintain the security and integrity of the Service and the Client Data. Madson App is not responsible to Client for unauthorized access to Client Data or the unauthorized use of the Service unless such access is due to Madson App’ gross negligence or willful misconduct. Client is responsible for the use of the Service by any person to whom Client has given access to the Service, even if Client did not authorize such use. Client agrees and acknowledges that Client Data may be irretrievably deleted if Client’s account is ninety (90) days or more delinquent. Notwithstanding anything to the contrary, Client acknowledges and agrees that Madson App may (i) internally use and modify (but not disclose) Client Data for the purposes of (A) providing the Services and any support or consultation services to Client and (B) generating Aggregated De-Identified Data (as defined below), and (ii) freely use and make available Aggregated De-Identified Data for Madson App’ business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Madson App’ products and services). “Aggregated De-Identified Data” means data submitted to, collected by, or generated by Madson App in connection with Client’s use of the Service, but only in aggregate, anonymized form which can in no way be linked specifically to Client or any individual. Notwithstanding anything else, Madson App is permitted to disclose (including through display of Client’s logo) that Client is one of its customers (including in its publicity and marketing materials), provided that Client may revoke the foregoing rights upon prior written notice to Madson App.

1. Term; Termination

This Agreement shall commence upon the effective date set forth in the first Order Form, and, unless earlier terminated in accordance herewith, shall last until the expiration of all Order Form Terms. For each Order Form, the “Order Form Term” shall begin as of the effective date set forth on such Order Form, and unless earlier terminated as set forth herein, (x) shall continue for the initial term specified on the Order Form (the “Initial Order Form Term”), and (y) following the Initial Order Form Term, shall automatically renew for additional successive periods of the same length as the Initial Order Form Term (each, a “Renewal Order Form Term”) unless either party notifies the other party of such party’s intention not to renew no later than thirty (30) days prior to the expiration of the Initial Order Form Term or then-current Renewal Order Form Term, as applicable. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice. Without limiting the foregoing, Madson App may suspend or limit Client’s access to or use of the Service if (i) Client’s account is more than thirty (30) days past due, (ii) Madson App determines, in its sole discretion, that Client’s business plans are competitive with those of Madson App, or (iii) Client’s use of the Service results in (or is reasonably likely to result in) damage to or material degradation of the Service which interferes with Madson App’ ability to provide access to the Service to other customers; provided that in the case of subsection (iii): (a) Madson App shall use reasonable good faith efforts to work with Client to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (b) prior to any such suspension or limitation, Madson App shall use commercially reasonable efforts to provide notice to Client describing the nature of the damage or degradation; and (c) Madson App shall reinstate Client’s use of or access to the Service, as applicable, if Client remediates the issue within thirty (30) days of receipt of such notice. Client agrees and acknowledges that Client Data may be irretrievably deleted upon termination of this Agreement. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

1. Indemnification

Client shall defend, indemnify, and hold harmless Madson App, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers, partners, third party service providers and representatives from all liabilities, claims, and expenses (“Losses”), that arise from or relate to the Client Data or Client’s use of the Service.

1. Disclaimer

EXCEPT FOR ANY EXPRESS WARRANTIES SET FORTH HEREIN, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND IS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.

1. Limitation of Liability

IN NO EVENT SHALL MADSON APP, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, THIRD PARTY SERVICE PROVIDERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY CLIENT TO MADSON APP HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.

1. Miscellaneous

This Agreement represents the entire agreement between Client and Madson App with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Client and Madson App with respect thereto. The Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules. Except for claims for injunctive or equitable relief or non-payment or claims regarding intellectual property rights (which may be brought in any competent court), any dispute arising under this Agreement shall be finally settled in accordance with the Streamlined Rules of Arbitration of JAMS by one arbitrator appointed in accordance with such Rules. The arbitration shall take place in San Francisco, California, USA, in the English language and the arbitral decision may be enforced in any court.  With respect to all disputes arising in relation to this Agreement, but subject to the preceding arbitration provision, the parties consent to exclusive jurisdiction and venue in the state and federal courts located in San Francisco, California. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the Order Form. Either party may update its address set forth above by giving notice in accordance with this section. Except as otherwise provided herein, this Agreement may be amended only by a writing executed by both parties. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes, lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement, and (ii) Madson App may utilize subcontractors in the performance of its obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.

API License Addendum

This API License Addendum (“Addendum”) applies to developer Clients (“Developer”) and is incorporated by reference into the Agreement. Capitalized terms not defined herein shall have the meaning set forth in the Terms or Order Form (as applicable).

1. Definitions. As used in this Addendum:
2. “API” means the application programming interface, any related documentation, code and other materials provided therewith, and any modified, updated, or enhanced versions of such items that Madson App provides to Developer pursuant to this Addendum. The API is deemed part of the “Service” (as defined above).
3. “API Key” means the code provided by Madson App that permits Developer to access the API.
4. “Developer App” means a plug-in or other software application that is (i) developed by Developer through use of the Service and/or the API, and (ii) complies with the requirements of this Agreement.
5. License

Subject to Client’s full compliance with the terms and conditions of the Agreement , Madson App grants to Developer a limited, non-exclusive, non-transferable, non-sublicensable license to: (i) internally use the API Key to access the API, (ii) internally use the API solely as necessary to develop, maintain and support the Developer App, in accordance with the specifications included in the API; (iii) reproduce and distribute copies of the API (in its original form or as modified), in executable code form only, solely as incorporated into the Developer App to its end users pursuant to a binding written agreement. For clarity, such license does not include any right to access or use any Madson App’ source code.

3. Restrictions

Developer acknowledges that the API and its structure, organization, and source code constitute valuable trade secrets of Madson App. Developer shall not (and shall not permit any third party to) (i) disclose, distribute, sublicense, lease, rent, loan, resell or otherwise transfer the data received from the Service or API (other than those elements incorporated into the Developer App) or the API Key to any third party, (ii) use the API or API key to build an application or product that is competitive with the Services or the API, (iii) remove, alter, or obscure in any way any proprietary rights notices (including copyright notices) of Madson App on or within the copies of the API, (iv) modify or create derivative works of the API or the Services, (v) decompile, reverse engineer, disassemble, or derive the source code, underlying ideas, concepts or algorithms of the API (except as and only to the extent the foregoing restrictions are expressly prohibited by applicable statutory law), (vi) block, disable, hide or limit in any way the ability of any device (whether or not such device includes a Developer App) to access the Service or any portion or functionality of or enabled by the Service. Developer shall reproduce, on all copies made by Developer all proprietary rights notices (including copyright notices) of Madson App on or within the copies of the API. Developer shall immediately notify Madson App if Developer becomes aware of any breach relating to the API.

4. App Policy

Developer is solely responsible and liable for the Developer App. Developer is solely responsible for supporting the Developer App. The Developer App shall not (i) violate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) violate any laws or regulations (including any privacy laws) or any obligations or restrictions imposed by any third party; (iii) be unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, or patently offensive, or promote racism, bigotry, hatred, or physical harm of any kind against any group or individual, or be otherwise objectionable; (iv) be harmful to minors in any way; (v) contain any computer viruses, worms, or any software intended to damage or alter a computer system or data; (vi) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise.

Developer may only use or disclose information provided by Madson App’ customers (“Customer”) to the Developer App as necessary to provide services requested by such Customer or as otherwise expressly consented to by such Customer. At all times, Developer App and Developer’s use of the data from Customers must comply with all applicable laws, regulations and best practices concerning privacy, personally identifiable information, and data protection. Developer must enter into a commercially reasonable agreement with every Developer App user that includes, without limitation, a provision regarding data usage, storage and protection.

5. Confidentiality

“Confidential Information” includes the API Key and API and any other materials of Madson App that Madson App designates as confidential or which Developer should reasonably believe to be confidential. Developer shall hold Madson App’ Confidential Information in confidence and shall neither disclose such Confidential Information to third parties nor use Madson App’ Confidential Information for any purpose other than as necessary to perform under this Addendum. Developer agrees to limit access to the Confidential Information to those employees, agents, and representatives who are necessary for Developer to perform its obligations under this Addendum. All such employees, agents, and representatives must have a written confidentiality agreement with Developer that is no less restrictive than the terms contained herein. Developer will protect the Confidential Information from unauthorized use, access, or disclosure in the same manner as Developer protects its own confidential or proprietary information of a similar nature but in any event no less than reasonable care. The foregoing restrictions on disclosure shall not apply to Confidential Information that is (a) already known by Developer without restriction; (b) becomes, through no act or fault of Developer, publicly known; (c) received by Developer from a third party without a restriction on disclosure or use; or (d) independently developed by Developer without reference to Madson App’ Confidential Information.

1. Developer Products and Services

Developer must not have a current or proposed product or service that is competitive with Madson App’ products or services.  If Developer intends at any time to institute such a product or service, Developer shall: (i) promptly inform Madson App in writing in advance of releasing such product or service; (ii) not use in the development, implementation or offering of that product or service (whether for advice, review or otherwise) any personnel who have had access to any part of the API; and (iii) not use any part of the API or any related intellectual property in connection with that program.

1. Ownership

Madson App shall own all right, title, and interest (and all related moral rights and intellectual property rights) in and to the API and the API Key, including any copies and derivative works thereof.  No rights or licenses are granted except as expressly and unambiguously set forth herein.

1. Term and Termination

This Addendum will remain in effect until the Developer’s subscription has expired or it has otherwise been terminated. The provisions governing termination in the Terms shall also govern this Addendum.