LoudDoor Client Terms of Service and Subscription Agreement
PLEASE READ THESE CLIENT TERMS OF SERVICE CAREFULLY.
This is a contract between you (the Client) and us (LoudDoor). It describes the services, the nature of the data we will provide to you, how we will work together, and other aspects of our business relationship. It is a legal document so some of the language is necessarily “legalese” but we have tried to make it as readable as possible. These terms are so important though that we cannot provide these services or data to you unless you agree to them. By using the Subscription Service, you are agreeing to these terms. We periodically update these terms and we will let you know when we do through the Dashboard and Update pages or through email.
1. Definitions
“Agreement” means these Client Terms of Service and Subscription Agreement and all materials referred or linked to in here.
“Activation Date” means the date on which the Client gains access to the LoudDoor Applications.
“Applications” means the LoudDoor Revolution Dashboard, databases, algorithms, software programs, software source documents, and formulae related to the data aggregated therein.
”End User” means employees, representatives, consultants, contractors or agents who are authorized to use the Subscription Service for your benefit and have unique user identifications and passwords for the Subscription Service.
“Billing Period” means the period for which you agree to prepay fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if you subscribe to the Subscription Service for a one (1) year Initial Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
“Consulting Services” means professional services provided to you by us, which may include training services, installation, integration or other consulting services.
“Client Data” means aggregate survey responses from the unique set of survey takers specifically requested as part of a Order Form that we obtain on your behalf.
“LoudDoor Content” means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into the Subscription Service or Consulting Services.
“Order Form” or “Order” means the LoudDoor-approved form by which you agree to subscribe to the Subscription Service and purchase additional features, research of services.
“Provider Data” means first party data obtained from individuals who have opted-in to a LoudDoor Survey application and any data obtained related to that individual via survey responses, Facebook permissions or any other method.
“Subscription Service” means our web-based research and reporting applications, tools and platform that you have subscribed to by an Order Form, and developed, operated, and maintained by us, accessible via http://www.louddoor.com or another designated URL, and any ancillary products and services, including media buying, custom reports, keywords, research or surveys.
“Subscription Term” means the Initial Subscription Term and all Renewal Subscription Terms.
“We”,”us” or “our” means LoudDoor LLC
“You” or “Client” means the person or entity using the Subscription Service or receiving the services or outputs identified in the applicable billing statement, Order Form or Statement of Work as the client.
2. The Subscription Service
a. License Grant. During the Subscription Term, and subject to the terms and conditions of this Agreement, LoudDoor hereby grants you a non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Applications through the LoudDoor Dashboard.
b. Access. During the Subscription Term, we will provide you access to use the Subscription Service as described in this Agreement. We try to make the Subscription Service available 24 hours a day, 7 days a week, except for planned down-time for maintenance. However, mechanical, telecommunications, or software failures controlled by third parties or the Client may render the Applications unavailable for periods of time.
c. Modifications. We modify the Subscription Service from time to time, including by adding or deleting features and functions, in an effort to improve your experience. But we will not make changes to the Subscription Service that materially reduce the functionality of the Subscription Service provided to you during the Subscription Term.
d. Additional Features. You may subscribe to additional features of the Subscription Service by entering into a new Order Form.
e. Security. You will use all commercially reasonable efforts to protect the Applications and any data compiled thereby from any use that is not permitted under this Agreement or law.
f. Limits. Limits may apply to the number of Users, keywords, competitors tracked, and other features. Any limits will be specified in your Order Form and this Agreement.
g. Free Trial. If you register for a free trial of the Subscription Service, we will make the Subscription Service available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period or (b) the start date of your subscription. If we include additional terms and conditions on the trial registration web page, those will apply as well. During the free trial period, (i) the Subscription Service is provided “as is” and without warranty of any kind, (ii) we may suspend, limit, or terminate the Subscription Service for any reason at any time without notice, and (iii) we will not be liable to you for damages of any kind related to your use of the Subscription Service.
3. Fees and Payments
a. Subscription Fees. The Subscription Fee will remain fixed during the Subscription Term unless you (i), change products or base packages, or (ii) subscribe to additional features or products, including additional custom surveys or research. Where a price change applies to you, we will charge or invoice you under the new price structure, starting with the next Billing Period in the Subscription Term
c. Late Payments. Late payments shall accrue interest at a rate of 1.5% per month, or the maximum legal rate if less. Client shall pay for all costs (including reasonable attorneys’ fees) incurred by LoudDoor in connection with the collection of late payments. In the event that any fees due under this Agreement are more than thirty (30) days late, LoudDoor shall have the right to suspend performance under this Agreement until all fees are made current. All payments hereunder shall be made in United States Dollars.
e. Payment against invoice. If you are paying by invoice, we will invoice you at the beginning of the Initial Subscription Term and at the beginning of each subsequent Billing Period. All amounts invoiced are due and payable within thirty (30) days from the date of the invoice, unless otherwise specified in the Order Form.
f. Payment Information. You will keep your contact information, billing information and credit card information (where applicable) up to date. Changes may be communicated directly with your account representative or via email at sales@louddoor.com. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance throughout the Subscription Term.
g. Invoice Disputes. If there is a dispute associated with a monthly invoice, Client shall notify LoudDoor in writing of the dispute on or prior to the due date applicable to the pertinent monthly invoice and shall concurrently provide appropriate information and documentation to substantiate the basis and nature of the dispute or the dispute shall be waived. Client shall pay all undisputed and disputed amounts of any monthly invoice according to the terms set forth in this Agreement. Any adjustments relating to a disputed amount shall be reflected on the next quarterly invoice issued after resolution. The parties shall work cooperatively and use their best efforts to resolve any disputes as soon as possible and, in any event, within sixty (60) days after notice of such dispute to LoudDoor.
4. Subscription Term and Renewal
a. Initial Subscription Term. The initial subscription term shall begin on the Activation Date your Subscription and expire at the end of the period specified in the Order Form (“Initial Subscription Term).
b. Renewal Subscription Term. Unless one of us gives the other written notice that it does not intend to renew the subscription, this Agreement will automatically renew for the shorter of the Initial Subscription Term or one year (“Renewal Subscription Term”). Written notice of non-renewal must be sent no more than ninety (90) days but no less than forty-five (45) days in advance of the end of the Subscription Term. The Renewal Subscription Term shall be: (i) on the then-current terms and conditions of this Agreement, or (ii) subject to the renewal pricing provided for in your Order Form or, if not specified in the Order Should you decide not to renew, you may send the notice of non-renewal by email to sales@louddoor.com.
5. LoudDoor’s Proprietary Rights
This is an Agreement for access to and use of the Subscription Service, and you are not granted a license to any software by this Agreement. The Subscription Service and any other services are protected by intellectual property laws. Except as described in the Client’s Proprietary Rights, below, LoudDoor owns and shall retain all proprietary rights, including all copyright, patent, trade secret, trademark and all other intellectual property rights, in and to the Applications and any corrections, enhancements, or other modifications to the Applications, whether made by LoudDoor or any third party. Client acknowledges that the licenses granted under this Agreement do not provide the Client with title to or ownership of the Applications, but only a right of limited use under the terms and conditions of this Agreement.
6. Client’s Proprietary Rights
As between the parties, you own and retain all rights to the aggregate results of any Client Data such as custom questions, custom research or custom reports that we obtain, perform or create for you and make available to you during the period of your Subscription Agreement. LoudDoor will not make the results of the results of any Client Data to other non-related third parties. You grant permission to use your proprietary materials and and client data only as necessary to provide the Subscription Service and consulting services to you. Upon the termination of your Subscription Period it is your responsibility to maintain the results and outputs of any Client Data and reports. We will not maintain the results of custom questions, research or reports on your behalf.
7. Data Provenance
LoudDoor will not provide any unaggregated first party Provider Data that can be associated with a unique individual. Aggreage data summaries made accessible via the Applications will be based only upon Provider Data that is processed in a manner that complies in all material respects with all applicable Data Privacy Laws, Self-Regulatory Principles, and LoudDoor’s privacy policy and public statements. LoudDoor will post and maintain on its Web site a privacy policy that discloses its data processing practices regarding Provider Data, its source data, and any Third Party Data. LoudDoor will utilize only Provider Data that was collected under and in compliance with such a privacy policy and for which it retains evidence of the applicable privacy policy or notice to consumers.
8. Data Collection Restrictions
LoudDoor will not provide to you any uniquely identifiable first party Provider Data. LoudDoor will provide only aggregate summarized Provider Data that it, or its source data, was collected using technology disclosed in LoudDoor’s privacy policy that allows for the same level of transparency and control as is currently required by Facebook privacy policies. Unless expressly stated in the Order Form, such data collection methodologies will not include the use of HTTP cookies. If LoudDoor contracts with Third Party Data providers, it will contractually obligate Third Party Data providers to limit the technology used to collect Third Party Data or its source data to technology disclosed in the Third Party Data provider’s privacy policy that allows for the same level of transparency and control as is currently available under our policies.
9. Publicity
You grant us the right to add your name and company logo to our client list and website.
10. No Warranty
LOUDDOOR PROVIDES NO EXPRESS, IMPLIED, STATUTORY, OR OTHER WARRANTIES, WITH RESPECT TO ANY SOFTWARE OR SERVICES PROVIDED HEREIN, AND LOUDDOOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NOTWITHSTANDING ANYTHING TO THE CONTRARY, LOUDDOOR PROVIDES NO WARRANTY TO END USERS OR OTHER THIRD PARTIES PURSUANT TO THIS AGREEMENT AND ANY REPRESENTATION TO THE CONTRARY SHALL BE NULL AND VOID. LOUDDOOR MAKES NO WARRANTY OR REPRESENTATION WITH RESPECT TO THE EFFECTIVENESS OF THE APPLICATIONS.
11. Indemnification
By LoudDoor . LoudDoor shall defend or settle, at its own expense, any action brought against Client to the extent it is based upon a claim that the Applications infringe any United States copyright, trademark, patent or trade secret and will pay such damages or costs as are finally awarded against Client attributable to such action, provided that Client: (a) notifies LoudDoor promptly in writing of any such action, (b) gives LoudDoor sole control of the defense and/or settlement of such action and (c) gives LoudDoor all reasonable information and assistance in connection with such action. Should the Applications become, or in the opinion of LoudDoor be likely to become, the subject of such an infringement claim, LoudDoor may, at its option (i) procure for Client the right to use the Applications free of any liability; (ii) replace or modify, in whole or in part, the Applications to make it non-infringing; or (iii) remove Client’s access to the Applications, or part thereof, from this Agreement. LoudDoor assumes no liability hereunder for any infringement arising from: (i) any method or process in which the Applications may be used; (ii) any compliance with Client’s designs or specifications; or (iii) the combination, operation or use of the Applications with any third party programs, data or hardware.
By Client . Client shall defend or settle, at its own expense, any action brought against LoudDoor alleging, regarding or arising out of: (i) infringement of any copyright, patent, trade secret, or other intellectual property or proprietary right of any third party by the products, or services of Client to the extent such products or services are related to the use of the Applications or to this Agreement; (ii) violation by Client of any applicable law, rule, or regulation, agreement or contract; (iii) acts or omissions of Client; (iv) Client’s breach of this Agreement; (v) the acts or omissions of End User(s); or (v) other claims against Client, and will pay such damages or costs as are finally awarded against LoudDoor attributable to such action, provided that (a) LoudDoor notifies Client promptly in writing of any such action; (b) gives Client sole control of the defense and/or settlement of such action; and (c) gives Client all reasonable information and assistance (at Client’s expense excluding time spent by LoudDoor’s employees or consultants) in connection with such action.
12. Limitation of Liability.
CLIENT AGREES THAT LOUDDOOR’S TOTAL AND CUMULATIVE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL IN NO EVENT EXCEED THE TOTAL MONTHLY SERVICE FEES PAID BY CLIENT HEREUNDER. CLIENT FURTHER AGREES THAT LOUDDOOR WILL NOT BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. IN NO EVENT WILL LOUDDOOR BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF LOUDDOOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLIENT ACKNOWLEDGES THAT THE AMOUNTS PAYABLE HEREUNDER ARE BASED IN PART ON THESE LIMITATIONS, AND FURTHER AGREES THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
13. Miscellaneous.
Relationship of the Parties . Each party will be and act as an independent contractor and not as an agent or partner of, or joint venture with, the other party for any purpose related to this Agreement or the transactions contemplated by this Agreement, and neither party by virtue of this Agreement will have any right, power or authority to act or create any obligation, expressed or implied, on behalf of the other party.
Assignment . Client shall not assign or transfer this Agreement or any rights or obligations under this Agreement, whether voluntary or by operation of law, without the prior written consent of LoudDoor. Notwithstanding the foregoing, either party may assign or transfer this Agreement to any successor by way of merger, acquisition or sale of all or substantially all of its business or assets relating to this Agreement. Any assignment or transfer of this Agreement made in contravention of the terms hereof shall be null and void. Subject to the foregoing, this Agreement shall be binding on and inure to the benefit of the parties’ respective successors and permitted assigns.
Entire Agreement; Modification . This Agreement represents the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings with respect to the subject matter hereof. Client agrees that it has not entered in this Agreement based on any representations other than those contained herein. This Agreement shall not be modified or amended except by written agreement of the parties.
Force Majeure . Neither party shall be responsible for any delays or inability to perform any of its obligations under this Agreement due to any Act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of production facilities, riot, insurrection, material unavailability or change in supply costs, acts of terrorism, or any other cause beyond the reasonable control of such party. Client acknowledges and agrees that LoudDoor shall not be responsible for downtimes due to Client’s gateway or for Internet downtimes outside of LoudDoor’s reasonable control.
Governing Law . This Agreement shall in all respects be governed by the laws of the State of South Carolina without reference to its principles of conflicts of laws. The parties hereby agree that all disputes arising out of this Agreement shall be subject to the exclusive jurisdiction of and venue in the federal and state courts within Richland County, South Carolina. Each party hereby irrevocably consents to the personal and exclusive jurisdiction and venue of these courts
Attorneys’ Fees . If any suit, hearing or other action is filled by a party to enforce this Agreement (“Action”), the prevailing party shall be entitled to recover reasonable attorney’s fees incurred in preparation and prosecution or defense of the Action as fixed by the trial court or person or panel deciding such matter, and if any appeal is taken from that decision, reasonable attorneys’ fees as fixed by the appellate court.
Severability . If any of the provisions of this Agreement are held to be invalid under any applicable statute or rule of law, they are, to that extent, deemed omitted.
Waiver . The waiver of one breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default.
Notices . All notices required or permitted under this Agreement will be in writing and will be deemed received when (i) delivered personally; (ii) when sent by confirmed telex or facsimile (followed by the actual document in air mail/air courier); (iii) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid (or six (6) days for international mail); or (iv) one (1) day after deposit with a commercial express courier specifying next day delivery or, for international courier packages, two (2) days after deposit with a commercial express courier specifying 2-day delivery, with written verification of receipt.
Protection of Data; Loss of Data . LoudDoor shall use commercially reasonable efforts to back-up any data created from the Applications (“Data”). Notwithstanding the foregoing, LoudDoor is not responsible for the loss of any Data unless such loss is created by the gross negligence or willful misconduct of LoudDoor.
Confidentiality . During the term of this Agreement, each party may be exposed to confidential information and materials of the other party (hereinafter referred to as the “Confidential Information”). Both parties agree for themselves and all of their employees (and subcontractors, if applicable) that such information shall be kept confidential and not disclosed to third parties. At the termination or expiration of this Agreement, each party shall either return the other’s Confidential Information in its possession, custody or control (including all copies) or shall, at the disclosing party’s direction, destroy the other party’s Confidential Information (including all copies) and certify its destruction to the disclosing party. Either party may disclose the other party’s Confidential Information upon order of any competent court or government agency; provided, however, that prior to disclosure the receiving party shall inform the other party of such order within a reasonable time to allow the other party to object to such order if it desires. Information will not be considered to be Confidential Information if (i) already available to the public; (ii) independently developed by personnel or agents of one party without access to the Confidential Information of the other; (iii) already known to the recipient at the time of disclosure; or (iv) produced in compliance with applicable law or a court order, provided the receiving party first gives the disclosing party reasonable notice of such law or order.
Precedence . In the event of a conflict between the terms of this Agreement and an Order Form or Statement of Work, the terms of the Order Form or Statement of Work shall control, but only as to that Order Form or Statement of Work.