For the purposes of this Agreement, in addition to the capitalized terms defined elsewhere in this Agreement, the following terms shall have the meanings ascribed to them as follows:
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control”, for purposes of this Agreement, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity;
“Content” means the requested content made available by Strategically to Customer through the Service.
“Customer Data” means all electronic data or information submitted by Customer and/or its Users to the Service;
“Fee” means the fees (as specified in the applicable Subscription Plan) payable by Customer to Strategically for the right to receive access to the Service;
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs;
“Term” has the meaning ascribed to that term in Section 10.1; and
“User” means an individual or entity who is authorized by Customer to use the Service, and who has been supplied a user account and password by Customer (or by Strategically at Customer’s request) for the Service.
2.1 Provision of Service. Conditioned on the provisions in this Section 2 and the other terms and conditions of this Agreement including payment of the applicable fees, Strategically shall make the Service available to Customer for Customer’s internal business use during the Term. Customer’s right to use the Service during the Term shall be in accordance with any additional conditions, restrictions or parameters specified in the applicable Subscription Plan(s).
2.2 User Accounts. User accounts are for use by designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Service.
2.3 Content and Content Providers. Strategically engages independent third party content providers (“Content Providers”) in order to develop the Content. The Content provided through the Service is based on Strategically’s reasonable efforts to engage with responsible and reputable Content Providers at any given time, but all Content is provided on an “As-Is” basis and Strategically makes no representation or warranty regarding the Content, whether in regards to its accuracy, originality, suitability, non-infringement or otherwise. Strategically may (but is not required to) submit any Content to a third-party verification tool such as Copyscape to assist in identifying any plagiarism or other intellectual property infringement by Content Providers, but Strategically accepts no responsibility for either failing to do so or for such third party tools failing to identify any such plagiarism or other intellectual property infringement, and Strategically accepts no responsibility for any infringement by any Content of any third party rights, whether arising due to intellectual property infringement (including without limitation plagiarism) or otherwise. Customer is solely responsibility for the review and approval of any and all Content prior to use or publication. Customer is solely responsible for any decision or action that it may take, regarding the use, publication or distribution of any Content, and Strategically accepts no responsibility for any consequences arising from such use, publication or distribution by Customer (including without limitation any claim for plagiarism, royalties or otherwise).
2.4 Customer Customer is responsible for all activities that occur in User accounts and for Users’ compliance with this Agreement. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify Strategically promptly of any such unauthorized access or use; and (iii) comply with all applicable local, provincial, state, federal and foreign laws in using the Service.
2.5 Use Guidelines. Customer shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party; (ii) use the Service to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) use the Service to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third-party privacy or publicity rights; (iv) use the Service to send or store Malicious Code; (v) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (vi) attempt to gain unauthorized access to the Service or its related systems or networks.
2.6 Publicity. Neither party may issue press releases relating to this Agreement without the other party's prior written consent. Each party may include the name and logo of the other party in lists of customers or vendors in accordance with the other party's standard guidelines.
3.1 Fees. In consideration for the receipt of the Service, Customer shall pay Strategically the Fees specified in the applicable Subscription Plan. Strategically reserves the right to amend the fees on not less than 60 days’ advance notice in writing to Customer.
3.2 Invoicing and Payment. Fees for the Service will be invoiced monthly in advance or as otherwise as specified in the applicable Subscription Plan. Unless otherwise stated in an invoice, charges are due immediately on the invoice date. Customer is responsible for maintaining complete and accurate billing and contact information with Strategically.
3.3 Overdue Payments. Any payment not received from Customer by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at Strategically's discretion, late charges at the rate of 1.0% of the outstanding balance per month (12.67% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
3.4 Audit Rights. Strategically shall have the right to use the capabilities of the Service to monitor the use of the Service and Customer’s compliance with this Agreement.
3.5 Suspension of Service. If Customer's account is overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Strategically reserves the right to suspend the Service provided to Customer, without liability to Customer, until such amounts are paid in full.
3.6 We reserve the right to refuse any payment or refund payments if we deem the Customer to be a bad fit for our services.
4.1 Rights to Content. Strategically agrees that all of its right of title and ownership of the Content (including any of its related Intellectual Property Rights) are assigned to Customer on payment in full of such Content to Customer. For the avoidance of any doubt, it hereby clarified that the Customer is granted a perpetual, royalty-free, uninterrupted, worldwide right to transmit, reproduce, publicly display, perform, distribute, alter, transmit or create derivative works of any Content or any portion of or excerpts from the Content in any fashion as the Customer may deem fit. All moral rights to Content are waived by Strategically and the Content Providers.
4.2 Rights to the Service. Subject to the limited rights expressly granted hereunder, Strategically reserves all rights, title and interest in and to the Service, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth in this Agreement. Customer and its Users are permitted to access the Service, including the Content, solely for Customer’s internal information purposes.
4.3 Restrictions. Customer shall not (and shall not allow any third party to) access the Service in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Service. Customer may use any Content or any excerpt from any Content to promote its products or services.
4.4 Customer Data. As between Strategically and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data. Customer Data is deemed Customer’s Confidential Information under this Agreement. Strategically shall not access Customer's User accounts, including Customer Data, except to respond to service or technical problems or at Customer's request or as necessary for the operation of the Service or billing. Customer hereby grants Strategically a non-exclusive, non-transferable (except in connection with the permitted assignment of this Agreement), irrevocable, worldwide, royalty-free, fully paid-up license for the Term (and for thirty (30) days thereafter) to use and otherwise exploit the Customer Data as reasonably required to provide the Service. The forgoing license shall include the right for Strategically to use and copy the Customer Data for the purpose of creating aggregated and anonymized statistical analytics in respect to Service use and other Service and User parameters and characteristics (“Aggregated Statistics”). Strategically shall own all Aggregated Statistics created from the Customer Data.
4.5 Suggestions. Strategically shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual, unrestricted license to use or incorporate into the Service and/or any other products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Users relating to the Service.
5.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Subscription Plan hereunder), the Customer Data, the Service, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
5.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission.
5.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
5.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
5.5 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections in this Agreement, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
6.1 Warranties. Each party warrants that it has the legal power to enter into this Agreement.
6.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, STRATEGICALLY MAKES NO REPRESENTATIONS AND PROVIDES NO WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS, INCLUDING ANY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. TO THE MAXIMUM EXTENT PERMITTED BY LAW, STRATEGICALLY FURTHER DISCLAIMS ALL WARRANTIES (I) RELATING TO THE ACCURACY, RELIABILITY, CORRECTNESS, OR COMPLETENESS OF THE CONTENT OR ANY PORTION THEREOF THAT IS MADE AVAILABLE ON THE SITE; (II) THAT THE CONTENT PROVIDED THROUGH THE SITE WILL BE FREE FROM ERRORS, OMISSIONS, DEFECTS, OR DELAYS IN OPERATION, OR FROM TECHNICAL INACCURACIES OR OTHER ERRORS; (III) THAT THE CONTENT SHALL NOT INFRINGE THE INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS OF ANY THIRD PARTY; (IV) THAT THE CONTENT WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (V) THAT THE SITE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION.
7.1 Indemnification by Customer. Subject to the terms and conditions of this Agreement, Customer shall, at its own expense, defend Strategically, its Affiliates and its and their directors, officers, employees and agents (the “Strategically Indemnitees”) in any action, suit or proceeding brought by a third party against any of the Strategically Indemnitees alleging that the Customer Data, or Customer's use of the Service infringes or misappropriates the intellectual property or other rights of, or has otherwise harmed, a third party (“Customer Claims”) and shall indemnify and hold the Strategically Indemnitees harmless from and against any settlement amounts agreed in writing by Customer and/or any losses, damages, expenses or costs (including but not limited to reasonable attorneys' fees) awarded to such third party against any of the Strategically Indemnitees by a court or tribunal of competent jurisdiction in any such Customer Claim. As conditions for such defense and indemnification by Customer, (i) Strategically shall notify Customer promptly in writing upon becoming aware of all pending Customer Claims; (ii) Strategically shall give Customer sole control of the defense and settlement of such Customer Claims; (iii) Strategically shall cooperate fully with Customer in the defense or settlement of such Customer Claims; and (iv) Strategically shall not settle any Customer Claims without Customer’s written consent, or compromise the defense of any such Customer Claims or make any admissions in respect thereto.
8.1 Limitation of Liability. IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE LESSER OF £500 OR THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER IN THE TWO MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
8.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS) HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.3 Certain Damages Not Excluded. NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO (I) DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, (II) DAMAGES ARISING FROM ANY INFRINGEMENT AND/OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS; OR (III) ANY CLAIMS FOR NON-PAYMENT.
8.4 Beneficiaries. Every right, exemption from liability, release, defence, immunity and waiver of whatsoever nature applicable to a party under this Agreement shall also be available and shall extend to benefit and to protect such party’s Affiliates, subcontractors, agents, licensors, suppliers, directors and/or employees and for such purposes such party is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of such companies and persons in respect to such rights, exemptions, releases, defenses, immunities and waivers.
9.1 Term of Agreement. This Agreement shall commence as of the Effective Date and shall continue in effect on a month-by-month basis unless otherwise specified in the applicable Subscription Plan. Subject to any minimum term in the applicable Subscription Plan, either party may terminate this agreement without cause on not less than 30 days prior notice or by otherwise following any termination mechanism provided for within the Service.
9.2 Termination for Cause. A party may terminate this Agreement for cause: (i) upon thirty (30) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
9.3 Outstanding Fees. Termination or expiration of this Agreement shall not relieve Customer of the obligation to pay any fees accrued or payable to Strategically before the effective date of termination or expiration of this Agreement.
9.4 Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 4 through 10.
9.5 Words purchased are nonrefundable and do not expire. Upon any termination, any words available on the account will not be refunded by Strategically but can be redeemed at any date in the future.
9.6 If you sign up for a monthly plan, then cancel after one month, your card on file will be billed for the applicable one-off rate.
9.7 The monthly rate cannot be purchased, then canceled, then repurchased. In this instance, you need to purchase the one-off content rate.
10.2 During the term of this Agreement, the Customer shall not, without the prior written consent of Strategically, solicit or entice away any employee of Strategically who performed (or is performing) material obligations under any applicable SOW (excluding administrative, secretarial, or other back-office functions), other than by means of a national advertising campaign open to all-comers and not specifically targeted at employees of Strategically. If the restriction set forth in this Clause 10.a is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area for which it may be enforceable.
10.3If the Customer breaches Clause 10.a, it shall pay Strategically an amount equal to the last twelve (12) months’ salary of the applicable individual in recognition of the value of the individual to Strategically and cost of recruiting and training a replacement. Payment of the above referenced amount shall be Strategically only remedy for a breach of Clause 10.a.
10.4During the term of this Agreement, Strategically shall not, without the prior written consent of the Customer, solicit or entice away any employee of the Customer who performed (or is performing) material obligations under any applicable SOW (excluding administrative, secretarial, or other back-office functions), other than by means of a national advertising campaign open to all-comers and not specifically targeted at employees of the Customer. If the restriction set forth in this Clause 10.c is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area for which it may be enforceable.
10.5If Strategically breaches Clause 10.c, it shall pay the Customer an amount equal to the last twelve (12) months’ salary of the applicable individual in recognition of the value of the individual to the Customer and cost of recruiting and training a replacement. Payment of the above referenced amount shall be the Customer’s only remedy for a breach of Clause 10.
11.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
11.2 No Third-Party Beneficiaries. Except as expressly provided in this Agreement, there are no third-party beneficiaries to this Agreement.
11.3 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) the second business day after sending by confirmed facsimile; or (iv) the second business day after sending by email. Notices to Strategically shall be addressed to the attention of the Legal Department. Notices to Customer shall be addressed to Customer’s signatory of this Agreement unless otherwise designated below.
11.4 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
11.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
11.6 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, each party may assign this Agreement in its entirety (including all Subscription Plans), without consent of the other party, to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its business, stock or assets. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.7 Governing Law. This Agreement shall be governed by the laws of England and Wales, without regard to its conflict of law principles. No choice of laws rules of any jurisdiction shall apply to this Agreement. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded. The parties confirm that it is their wish that this Agreement as well as all other documents relating to this Agreement, including notices, be drawn up in English only.
11.8 Force Majeure. Neither party shall be responsible for its failure to perform to the extent due to unforeseen circumstances or causes beyond its control, including but not limited to acts of God, wars, terrorism, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, or strikes, labour problems (other than those involving the employees of the affected party), computer, telecommunications, Internet service Strategically or hosting facility failures or delays involving hardware, software or power systems not within a party’s possession or reasonable control, provided that such party gives the other party prompt written notice of the failure to perform and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance.
11.11 Entire Agreement. This Agreement constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and Subscription Plan, the terms of this Agreement prevail unless otherwise expressly provided for in the applicable Subscription Plan. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.