Terms & Conditions

These Terms and Conditions (“Terms”) constitute a legal agreement between ClipSocial LLC a Maryland limited liability company, with its principal place of business at 4603 Roxbury Dr., Bethesda, MD 20814  (“ClipSocial”) and the customer ( “Client”) who has purchased services from ClipSocial entering into a mutually executed service order (each, an “Order”), whether such purchase was made directly with ClipSocial or through a reseller or agent of ClipSocial. ClipSocial is willing to make available the services to Client only as set forth in these Terms and each Order. These Terms, together with each Order, exhibits, addenda, and materials referenced herein, constitute a legal agreement and are referred to herein as the “Agreement”. 

  1. Scope of Services

(a)    Service Orders.  Subject to the terms and conditions of the Agreement, ClipSocial agrees to sell, and Client agrees to purchase, the services set forth in such Order (the “Services”).  Each Order shall be binding upon the parties only after mutual execution and each Order shall be considered an integral part of the Agreement.  The term of the Agreement shall commence on the start date set forth in the applicable Order (the “Effective Date”). Each Order will include a description of the Services and the clips, content, product(s), report(s) and/or other materials to be developed by ClipSocial and delivered to Client (the “Deliverables”), a list of any Client tasks and responsibilities, and any special terms and conditions applicable to the specific Order. In the event of a conflict between the provisions of these Terms and the terms of any Order, the terms of the Order shall take precedence, but only for the Services set forth in such Order.  No pre-printed or “boilerplate” provisions of any purchase order or other document provided by Client with or as part of any Order shall be binding upon ClipSocial. Unless the Order or this Agreement states otherwise, all Orders are non-cancellable and the fees set forth therein are non-refundable. 

(b)  Client Obligations. ClipSocial’s performance is dependent upon the timely and effective satisfaction of Client’s obligations, as set forth in this Section 1(b) and as may be included in the Order (the “Client Obligations”). ClipSocial shall have no liability to Client where its inability to perform the Services is the result of Client’s failure to perform the Client Obligations.  Client shall make available in a timely manner, at no charge to ClipSocial, all technical specifications, files, documentation, transmission data, event content, or other information and resources required by ClipSocial for the performance of the Services.  Client shall provide, at no charge to ClipSocial, any office space, services and equipment as ClipSocial reasonably requires to provide the Services at Client’s location, as applicable. Client acknowledges that ClipSocial may, in performing the Services, be dependent upon representations and other information furnished by Client without any independent investigation or verification thereof, and that ClipSocial shall be entitled to rely upon the accuracy and completeness of such information in performing the Services.

(c)  Delivery through LucidLink. Client acknowledges that the Deliverables shall be delivered by ClipSocial to a third-party file repository service (the “LucidLink Services”) which are provided by Lucidlink Corp (“Lucidlink”) and that Client will need to create a user profile with Lucidlink in order to retrieve the Deliverables.  Client’s use of the Lucidlink Services is subject to Lucidlink’s terms and conditions, viewable at https://www.lucidlink.com/terms and incorporated herein by reference (the “Lucidlink Terms and Conditions”) and ClipSocial assumes no reasonability or liability for the Lucidlink Services. 

  1. Term

This Agreement commences as of the Effective Date and shall remain in effect unless terminated pursuant to this Agreement (the “Term”).  Any Order entered into prior to the termination date of this Agreement continues in effect through the earlier of: (i) the date all Services in that Order have been fully completed, or (ii) expiration or termination of that Order in accordance with its terms or pursuant to Section 9 hereof.

  1. Payment Terms and Invoicing

(a)  Fees.  Client shall pay to ClipSocial, without offsets or deductions, the fees set forth in the Order, no later than the date on which they are due. If an Order does not specify payment terms, ClipSocial will invoice for Services bi-weekly in arrears and Client will make all payments no later than ten (10) days from the date set forth on ClipSocial’s invoice.  Except as specifically set forth herein, all fees are non-refundable and all Services are non-cancellable.

(b)  Expenses.  Client will pay all pre-approved travel, shipping and other related expenses incurred by ClipSocial in connection with performance of the Services.

(c)   Late Payment.  Client shall pay ClipSocial two percent (2%) interest per month or the highest rate permitted by law, whichever is lower, on the outstanding balance of any fees or expenses not paid within thirty (30) days of the date of invoice.  Client shall be responsible for all costs incurred by ClipSocial in order to recover payment of Client’s account, including without limitation, all professional fees and legal costs.  Without waving or prejudicing any other rights or remedies, ClipSocial shall have the right to suspend or delay the provision of Services on a day-for-day basis equal to the number of days a payment due hereunder is past due.

(d) Taxes.  Client agrees to pay or reimburse ClipSocial for all federal, state, dominion, provincial or local sales taxes, fees or duties arising out of this Agreement or the transaction contemplated by this Agreement (other than taxes on the net income of ClipSocial).  

  1. Confidential Information and protection of data

(a)  Definition.  “Confidential Information” means this Agreement and each Order, any addenda hereto signed by both parties, all software, software listings, documentation, information, data, drawings, benchmark tests, specifications, trade secrets, methodology, object code and machine-readable copies of software, source code copies of software, and any other intellectual property or proprietary information supplied by one party to the other which is clearly marked as “confidential” if in tangible form, or identified as “confidential” if orally disclosed.

(b)  Each party acknowledges that the Confidential Information constitutes valuable trade secrets and each party agrees that it shall use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other party’s prior written consent.  Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure.  However, neither party bears any responsibility for safeguarding any information that it can document in writing (i) is in the public domain through no fault of its own, (ii) was properly known to it, without restriction, prior to disclosure by disclosing party, (iii) was properly disclosed to it, without restriction, by another person with the legal authority to do so, (iv) is independently developed by receiving party without use or reference to disclosing party’s Confidential Information or (v) is required to be disclosed pursuant to a judicial or legislative order or proceeding; provided that, to the extent permitted by and practical under the circumstances, receiving party provides to disclosing party prior notice of the intended disclosure and an opportunity to respond or object to the disclosure or if prior notice is not permitted or practical under the circumstances, prompt notice of such disclosure

(c)  In the event of actual or threatened breach of the provisions of this Section 4, the non-breaching party will be entitled to immediate injunctive and other equitable relief, without bond and without the necessity of showing actual damage.

  1. Representations and Warranties

(a)  General.  Each party represents and warrants to the other that (i) it has full power to enter into this Agreement, to carry out its obligations and to grant all rights granted herein, (ii) that it and all of its employees and subcontractors shall perform all obligations under this Agreement and any Order in compliance with all applicable laws, including without limitation all export laws in connection with its use of any materials under this Agreement or any Order; and (iii) its execution of and performance under this Agreement and any Order(s) do not and will not conflict with any other agreement to which the party making the representation is a party.

(b)  ClipSocial.  ClipSocial represents and warrants that the Services will be performed in a professional and workmanlike manner, conforming to generally accepted industry standards and practices.  EXCEPT FOR THE FOREGOING, CLIPSOCIAL MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING OR RELATING TO ANY DELIVERABLES OR SERVICES FURNISHED OR PROVIDED TO CLIENT UNDER THIS AGREEMENT OR THE RESULTS THEREOF. CLIPSOCIAL SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO SAID MATERIAL AND SERVICES, AND WITH RESPECT TO THE USE OF ANY OF THE FOREGOING.

(c)  Client.  Client represents and warrants that (i) the Client Materials (as hereinafter defined) and will be Client’s own and original creation, except for content validly licensed by Client or in the public domain; (ii) the Client Materials and use of the Client Materials as contemplated herein will not (a) constitute a libel or defamation, (b) include any pornographic, obscene or similar objectionable material, or (c) conflict with or infringe upon or violate any copyrights, trademark rights, patent rights, trade secret rights, rights of publicity or privacy or other rights of any third party; (iii) all obligations owed to third parties with respect to the development, maintenance, and operation of the Client Materials including, but not limited to, all third-party hosting, service, or licensing fees, are or will be fully paid up by Client; and (iv) the Client Materials will not violate any federal, state, or local law, rule, or regulation.

  1. CONTENT OWNERSHIP; Licenses

(a)  Custom Deliverables.   Except as set forth in Section 6(c), upon full and final payment by Client for the Services set out in the applicable Order, all Deliverables that are identified as “custom” in the applicable Order (each, a “Custom Deliverable”) are the property of the Client and all rights, title and interest therein shall vest exclusively in the Client, including without limitation all copyright and all other intellectual property rights therein.

(b)  Licensed Deliverables. ClipSocial shall retain ownership in all Deliverables that are identified as “licensed” in the applicable Order (each, a “Licensed Deliverable”). Licensed Deliverables shall be subject to the license rights and restrictions set forth in in the Order or if no license is specified then, upon full and final payment for the Services set forth in the applicable Order, ClipSocial grants to Client a nontransferable, worldwide, nonexclusive, fully paid up, site unrestricted, royalty free license to use, copy, modify, sublicense, distribute and/or redistribute, make, have made, practice any process, and create derivative works of a Licensed Deliverable solely as necessary for Client to receive the full benefit of its use of the Deliverables, provided that Client shall have no rights to use the Licensed Deliverables on a stand-alone basis.

(c)  ClipSocial Materials and Know-How. Notwithstanding ownership by Client of the Custom Deliverables as provided above, all ClipSocial developed know-how, procedures, routines, techniques, methods, systems, processes, models, templates, tools, user interfaces, proprietary documentation, software, or screen designs that are used, created, modified, enhanced or developed prior to or during the course of providing the Services (“ClipSocial Materials”) are owned by ClipSocial, including all proprietary interests that are embodied in, or practiced by, the ClipSocial Materials.  Additionally, ClipSocial shall be free to use and employ its general skills, know-how, and expertise, and to use and employ any generalized ideas, concepts, know-how, or expertise gained during the course of any assignment, so long as it acquires and applies such information without disclosure of any confidential or proprietary information of Client.  ClipSocial grants to Client a perpetual, royalty free, worldwide, non-exclusive, non-transferable (except as provided in this Agreement) license to use any ClipSocial Materials (other than ClipSocial’s trademarks and trade names) that are incorporated or embedded into the Deliverables solely as necessary for Client to receive the full benefit of its use of the Deliverables, provided that Client shall have no rights to use the ClipSocial Materials on a stand-alone basis.

(d)  Client Materials. With respect to (a) any and all creative works, including, without limitation, ideas, sketches, films, electronic media, audio media, visual media, memoranda, written information, oral communications, and written communications furnished to ClipSocial for use in providing the Services, or (b) any contracts or licenses entered into by the Client involving content or intellectual property rights, personal appearances, or personal services which will be used by ClipSocial for the provision of the Services (collectively the “Client Materials”), the Client hereby grants to ClipSocial a limited, nonexclusive, revocable license to use the Client Materials solely for the purpose of providing the Services and delivering the Deliverables. Client warrants that (i) it shall provide to ClipSocial the Client Materials in compliance with applicable laws and regulations, with proper notice and consent for the collection and use of such Client Materials, and in compliance with its own privacy policies; (ii) it has procured all rights and licenses, and has all power and authority necessary to provide such Client Materials to ClipSocial and grant the rights granted to ClipSocial in this Agreement without requiring the additional consent of any third party; and (iii) it shall use the Services and Deliverables in compliance with applicable laws and regulations. Client further represents that the Client Materials have been licensed or otherwise contracted for use as set forth above, or, alternatively, is safely within the parameters of the fair use defense provided for in the U.S. Copyright Act, and the Client agrees to indemnify, defend, and hold harmless ClipSocial from and against any and all liability associated with the authorized use of the Client Materials.  

7.   Indemnification

(a)  Each party shall indemnify, defend and hold harmless the other, its employees, principals (partners, shareholders or holders of an ownership interest, as the case may be) and agents, from and against any third party claims, demands, loss, damage or expense relating to bodily injury or death of any person or damage to real and/or tangible personal property directly caused by the negligence or willful misconduct of the indemnifying party, its personnel or agents in connection with this Agreement. 

(b)  ClipSocial will defend or settle any third-party claim made against Client alleging: (a) ClipSocial’s use of the Client Materials in violation of this Agreement, or (b) the Deliverables, as provided by ClipSocial and excluding all Client Materials incorporated therein, infringes a U.S. patent or any copyright or trade secret of any third party. ClipSocial will defend such claim at its expense and will pay any costs or damages that may be finally awarded against Client.  ClipSocial will not indemnify Client if the claim of infringement is caused by: (1) misuse or unauthorized modification of a Deliverable by Client; (2) the Client Materials and ClipSocial’s use thereof as authorized by this Agreement; or (2) Client’s use of the Deliverable in combination with any product or information not owned or developed by ClipSocial unless the claim would have arisen solely from the use of the Deliverables without combination with such product or information.  If any Deliverable is found to be infringing, ClipSocial shall make its best effort to either (a) procure the right for Client to continue using it, (b) replace it with a non-infringing equivalent, (c) modify it to make it non-infringing, or (d) direct the return of the Deliverable.  The foregoing remedies constitute the sole and exclusive remedies of Client against ClipSocial and ClipSocial’s entire liability with respect to infringement. 

(c)  Client shall indemnify, defend and hold harmless ClipSocial, its employees, members, directors and agents from and against any third-party claims, demands, loss, damage or expense directly or indirectly caused by Client’s (i) breach of this Agreement, (ii) breach of the Lucidlink Terms and Conditions; or (iii) alleged or actual violation of any statute, law, ordinance or regulation. 

(d)  To receive the foregoing indemnities, the party seeking indemnification must promptly notify the other in writing of a claim or suit and provide reasonable cooperation (at the indemnifying party’s expense) and full authority to defend or settle the claim or suit.  The indemnifying party shall have no obligation to indemnify the indemnified party under any settlement made without the indemnifying party’s written consent.

8.  EXCLUSIVE REMEDY; Limitation of Liability

Except to the extent of any claim relating to a default or breach of the confidentiality or indemnity obligations set forth above, Client’s exclusive remedy for any default or claim arising out of or relating to this Agreement shall be for ClipSocial, upon its receipt of written notice of such a claim from Client, to use commercially reasonable efforts to promptly cure the default or breach at ClipSocial’s sole expense, and failing that, to return all fees and costs paid to ClipSocial for the work related to the default or breach. To the extent permitted by applicable law, except for breaches of confidentiality obligations, or for amounts payable by a party pursuant to any of its indemnification obligations under this Agreement, neither party will be liable to the other or to any third party for any special, indirect, incidental, consequential, exemplary, multiple, or punitive damages, including, without limitation, such damages constituting lost profits, even if advised of the possibility thereof.  The foregoing limitation of liability shall apply regardless of the cause of action under which such damages are sought.  Except with respect to the exclusive remedies specified in Section 7(b) above, and/or a breach of either party’s intellectual property rights or confidentiality obligations, including any liability of any party’s contractor, agent or affiliate to the other party or to any third party concerning performance or non-performance of the Services, or in any other manner related to this Agreement, for any and all claims shall in no event exceed an amount equal to (i) the amount of fees paid Client under the Order applicable to such claims, or (ii) if no Order is applicable to such claims then the amount of fees paid in the aggregate under this Agreement during the twelve (12) months preceding such claim.

9.   Termination

(a)  Termination for Breach.  If a party breaches this Agreement (including any document that this Agreement references as being attached or incorporated by reference), the other party has the right to terminate this Agreement by providing written notice of termination, if the breach has not been cured within 30 days following receipt of written notice of the breach (or if the breach is not capable of being cured).  

(b)  Termination: No Outstanding Order. Either party shall have the right to terminate this Agreement, for any reason or for no reason, upon 30 days prior written notice to the non-cancelling party where there are no outstanding Orders.  

(c)    Effect of Termination; Transition Period. Upon termination or other expiration of this Agreement, ClipSocial shall deliver to Client all Deliverables (whether complete or incomplete) under any Order and return all Client Materials held by ClipSocial for purposes of performance of this Agreement.  

(d)   Survival.  The following provisions survive any expiration or termination of this Agreement:  Section 1(h) (Records and Audit), Section 3 (Payment Terms and Invoicing), Section 4 (Confidential Information), Section 5(a) (General Representations and Warranties), Section 6 (Ownership; Licenses), Section 7 (Indemnification), Section 8 (Exclusive Remedy; Limitation of Liability), Section 9 (Termination), Section 10 (Notices), Section 11 (Force Majeure), and Section 14 (General Terms).

10.  Notices

Except as otherwise expressly provided in this Agreement, all notices or demands shall be in writing, and shall be sent (a) by courier service or personal delivery with signed receipt, (b) by nationally recognized overnight delivery service, prepaid, with signature required, or (c) certified mail, return receipt requested and in each case shall be sent to the other party at its address below its signature or to such other address designated from time to time by notice in accordance with this Section.  Notices are deemed to be received upon actual receipt or refusal of delivery.

11.  Force Majeure

Neither party is liable for any delay or non-performance due to fire or other casualty, act of God, war, terrorism, or other violence, any law, order or requirement of any governmental authority or other causes beyond the reasonable control of such party, provided that such party notifies the other party of such force majeure event promptly (including a reasonable estimate of time required for performance to the extent determinable) and such party uses reasonable commercial efforts to perform as soon as reasonably practicable.  Any delay or non-performance excused by this provision does not excuse performance of any other obligation unless also directly prevented by the force majeure condition, except that payment for Services delayed or not performed or product not delivered due to force majeure may be delayed until performance.

12.  General Terms

(a)  Non-Solicit. During the two-year period beginning at the end of the term of the applicable Order, Client shall not recruit ClipSocial personnel who have participated in a Order hereunder to separate from ClipSocial or enter into an employment or contractor relationship with Client or any affiliate of Client. The foregoing shall not apply to any individuals hired as a result of the use of a general solicitation (such as an advertisement, in newspapers, or on radio or television) not specifically directed to the employees of ClipSocial.

(b)   Assignment.  Neither party shall have the right to transfer or assign this Agreement to any third party without the other party's prior written consent; provided, however, either party shall have the right to transfer or assign this Agreement (without consent) to any Affiliate or to any entity which has acquired all or substantially all of its business or assets, whether by merger or acquisition.

(c)   Governing Law.  This Agreement shall be construed in accordance with the laws of the State of Maryland excluding its conflict of law provisions. The parties agree that any dispute arising from this Agreement shall be litigated solely and exclusively in the state or federal courts located in the State of Maryland and each party hereby consents to the jurisdiction of such courts over itself in any action relating to this Agreement. 

(d)   Entire Agreement; Interpretation.   This Agreement, together with any Exhibit or other documents referenced herein, sets forth the entire agreement and understanding between the parties with respect to the subject matter hereof, merges all prior discussions, and supersedes any other agreements, discussions, proposals, representations or warranties, written or oral, with respect to the subject matter hereof.  Each party acknowledges that it has participated in negotiating this Agreement and agrees that contractual ambiguities are not to be construed in favor of or against any party based on its role in drafting this Agreement.    

(e)   Amendment; Waiver.  Any modification of this Agreement must be in writing and signed by each party (authenticated electronic or digital signatures of an electronically transmitted amendment document are sufficient for purposes of this section, but informal email amendments are not).   No waiver of any part of this Agreement is valid unless in writing signed by the party to be charged, and no waiver on one occasion is deemed a waiver on any other occasion unless expressly stated in the written waiver. 

(f)   Severability.  If any provision of this Agreement is found to be invalid or unenforceable to any extent, then that portion shall be deemed conformed to the minimum requirements of law to the extent possible.  In addition, the remainder of this Agreement is not affected and continues to be valid and enforceable to the fullest extent permitted by law

(g)   No Third Party Beneficiaries.  This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.