These SoloSegment Site Search Inspector Terms of Service (this “Agreement”) are entered into by SoloSegment, LLC (“Company”) and the entity executing this Agreement (“Customer”). This Agreement governs Customer use of the SoloSegment Site Search Inspector (the “Service”). BY CLICKING THE TERMS AND CONDITIONS CHECK BOX AT REGISTRATION, COMPLETING THE REGISTRATION PROCESS, OR USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED AND ACCEPT THIS AGREEMENT AND ARE AUTHORIZED TO ACT ON BEHALF OF, AND BIND TO THIS AGREEMENT, THE OWNER OF THIS ACCOUNT. These SoloSegment Site Search Inspector Terms of Service (this “Agreement”) are entered into by SoloSegment, LLC (“Company”) and the entity executing this Agreement (“Customer”). This Agreement governs Customer use of the SoloSegment Site Search Inspector (the “Service”). BY CLICKING THE TERMS AND CONDITIONS CHECK BOX AT REGISTRATION, COMPLETING THE REGISTRATION PROCESS, OR USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED AND ACCEPT THIS AGREEMENT AND ARE AUTHORIZED TO ACT ON BEHALF OF, AND BIND TO THIS AGREEMENT, THE OWNER OF THIS ACCOUNT.
In consideration of the foregoing, the parties agree as follows:
WHEREAS, Customer operates websites serving visitors to those sites displaying content from the Customer (“Customer’s Websites”);
WHEREAS, Company has previously conceived, developed and owns, proprietary technology referred to as “Site Search Inspector” technology, consisting of a Scorecard and other software (“Company’s Existing Technology”), which Company will further develop subject and pursuant to the terms and conditions herein (the “Services”); and
WHEREAS, the Parties have agreed that, subject to the terms and conditions herein, Customer will license the Services from Company.
NOW, THEREFORE, in consideration of the mutual premises and covenants set forth herein, Company and Customer hereby agree as follows:
1.1 For purposes of this Agreement, the following words and phrases shall have the meanings set forth below:
“Distribute” shall mean (i) Implementation and operating the Services (ii) the payment or other delivery by Customer to Company of all fees or other consideration due in accordance with this Agreement.
“Documentation” means and includes all written and other materials supplied by Company under this Agreement in connection with the Services, including manuals and/or training materials, support documentation, technical specifications explaining and detailing the design, capabilities and performance standards for the Services, and any other writings provided by Company for use in conjunction with the testing and use of the Services;
“License” shall mean, Customer’s non-exclusive, non-transferable, limited, and revocable right to use the Software for the “Permitted Use” during the Term in accordance with the terms and conditions contained herein.
“Company’s IP” shall mean and include Company’s Existing Technology, together with and including the Services, including without limitation, trade secrets, copyrights, trademarks, patents, functionality and business methodology embodied therein, and the like, and further including any source code, object code, or other intellectual property developed by Company relating to the Company’s Existing Technology and/or the Services.
“Schedules” shall mean the schedules and exhibits annexed to this Agreement, each of which is incorporated by reference as if fully set forth herein, as the same may be modified from time to time by the mutual written agreement of the parties.
2. Grant of License; Ownership.
2.1 License to Use the Services. Subject to the terms and conditions herein, Company hereby grants to Customer a non-exclusive, limited, and revocable license during the Term to use the Services for Customer’s Websites and for no other purpose (“Permitted Use”).
Provided Customer is not in default of any obligation hereof beyond any applicable cure period, during the Term, Customer shall be entitled to all current versions of the Services.
2.2 Ownership. Company is the sole and exclusive owner of the Services. Customer expressly acknowledges and agrees that Customer does not and shall not own the Services or any rights thereto. The parties mutually agree that anything to the contrary notwithstanding in this Agreement or otherwise, Company’s development of the Services is expressly not a work-for-hire under the Copyright Act, and that Company specifically retains any and all rights, title and interest, in and to Company’s IP. Any and all rights not expressly granted to Customer herein are specifically reserved to Company.
Customer shall retain all rights to its “Data” (as hereafter defined). For purposes of this Agreement, “Data” shall mean information collected, gathered, organized, and utilized by Customer in connection with the internal operations of Customer, and Customer’s business, including by way of example, user IP addresses, search keywords, search results, search activity metrics, web pages, transaction history, website analytics, orders, sales, and other similar type information. Data shall not include Company’s IP or any database created by Company and within which Data is collected, stored, maintained or analyzed. Customer acknowledges that the Services utilize Customer’s Data and the data of Customers of Customer, and that Company may use such Data to optimize its Services in perpetuity, including after the termination of this Agreement. Customer further acknowledges that Company works with third parties to operate and optimize Company’s Existing Technology and Services, and Customer’s Data might be shared with these third parties.
2.3 Prohibitions on Use. Except as expressly permitted pursuant to this License, Customer shall not, and shall not permit any third party, to:
(i) Make the Services or the Documentation publicly available, or distribute the Services or the Documentation in any manner not explicitly authorized herein;
(ii) Copy, adapt, analyze, decompile, disassemble, reverse engineer, modify, translate (or the like) the Services or the Documentation;
(iii) Utilize the Services for any purpose other than the Permitted Use without Company’s express, specific and prior written approval;
(iv) Transmit by any media, copy, or otherwise permanently or temporarily reproduce, in whole or in part, the Services or the Documentation, except as permitted herein in compliance with this License; or
(v) Re-use, Distribute, or permit re-use or Distribution of any Services except as expressly contemplated by this License.
3. Termination and Its Effects.
3.1 Termination. This License granted herein shall terminate:
(i) upon termination of this Agreement;
(ii) upon mutual agreement of the parties;
(iii) at Company’s election, in the event Customer fails to make any payment of fees or delivery of other consideration pursuant to this Agreement, and fails to cure such breach within thirty (30) days after receipt of specific written notice from Company;
(iv) upon written notice by Company in the event Customer files a petition in bankruptcy, is adjudicated bankrupt or insolvent, makes an assignment for the benefit of creditors or an arrangement pursuant to any bankruptcy law, discontinues or dissolves its business, or if a receiver is appointed for Customer and such receiver is not discharged within thirty (30) days;
(v) at Company’s election, upon a material breach or misrepresentation of the Customer, of any term, provision, representation, warranty, covenant, or other obligation or agreement herein, that remains uncured after the Company has provided notice specifically describing such breach, and such breach has not been cured within thirty (30) days from the date of such notice; provided, however, that the Customer shall not be deemed to be in breach of this Agreement or its associated Business Services Supplier Agreement if such breach is not reasonably curable within such thirty (30) day period, and, in the commercially reasonable discretion of the Company, the Customer has diligently commenced curing of the breach within such period.
The foregoing sections, 3.1 (iii), 3.1 (iv), and 3.1 (v), shall each be considered “Termination for Cause.”
3.2 Effect of Termination for Cause. Termination for Cause shall entitle Company to seek damages and any available legal and equitable remedies.
4. Consideration; Payment Terms.
4.1 Fees. Customer will pay Company the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to limit data collection, API calls and other volumes if Customer exceeds the volumes indicated on the order form. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then‑current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
4.2 Customer solely responsible. The parties agree and Customer acknowledges that Company is not obligated to look to any third party for delivery and satisfaction of any and all fees or other consideration due from Customer to Company, and that delivery and satisfaction of any such fees and consideration is the sole obligation of Customer.
4.3 Term. The term of the agreement shall be as specified in the order form
4.4 Free Trials and Other Promotions: Company reserves the right to offer free trials and other promotions with reduced or waived fees, volume limits, and a term as specified in the offer. The Standard Free Trial will be offered with a 14 day term, a cap of 1,000 searches per month and 100% discount.
5. Delivery of the Services
5.1 Delivery. The Services shall be delivered to Customer via “cloud” technology.
6. Rights and Obligations of the Parties.
6.1 Company’s Limited Warranty. Company warrants the Services are furnished to Customer to be free from defects in materials and workmanship under normal use for thirty (30) days from the date of delivery, provided that Customer has not made any changes to the Services, Customer uses the Services in compliance with the Documentation, and in compliance with applicable hardware and related software requirements. Company is not responsible for Customer’s hardware or software employed in using the Services.
EXCEPT FOR THIS LIMITED WARRANTY, THE SERVICES AND THE DOCUMENTATION ARE FURNISHED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED.
6.2 Customer’s Representations and Warranties. Customer hereby represents, warrants and covenants as follows:
(i) (i) It will Distribute and use the Services only in conformance with the terms and conditions of this Agreement and only in compliance with the Documentation;
(ii) It will not rent, lease, sublicense, distribute, transfer or copy the Services or any component(s) thereof except as explicitly authorized herein;
(iii) That it will not adapt, modify or reverse engineer the Services in any way, or use it or them to create source code or a derivative work;
6.3 DISCLAIMER. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, COMPANY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SERVICES, OR ANY COMPONENT OF THE FOREGOING, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES REGARDING QUALITY, CORRECTNESS, COMPLETENESS, COMPREHENSIVENESS, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE (IRRESPECTIVE OF ANY COURSE OF DEALING, CUSTOM OR USAGE OF TRADE), OR ANY REPRESENTATION THAT THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT CUSTOMER’S USE THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES.
6.4 LIMITATION OF LIABILITY. COMPANY SHALL HAVE NO LIABILITY TO CUSTOMER WITH RESPECT TO COMPANY’S OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFIT, REVENUE, DATA OR GOODWILL, WHETHER INCURRED OR SUFFERED AS A RESULT OF ANY ERRORS, DEFECTS OR NON-FUNCTIONING OF THE SERVICES OR OTHERWISE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY HEREUNDER FOR ANY CAUSE IN ANY CALENDAR YEAR ARISING OUT OF OR RELATED TO COMPANY’S PERFORMANCE OR NON-PERFORMANCE UNDER THIS AGREEMENT OR OTHERWISE EXCEED THE AMOUNT OF THE FEES PAID HEREUNDER TO COMPANY DURING THE TERM OF THIS AGREEMENT. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF LIMITED WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS.
6.5 Indemnification of Company by Customer. Customer shall indemnify, defend and hold Company, its members, managers, directors, officers, employees, and affiliates, harmless from and against any and all liabilities and damages incurred by Company, to the extent such liabilities and damages have arisen in connection with, or result directly or indirectly from the breach by Customer of any term or condition of this License.
You must not circumvent any privacy features (e.g., an opt-out) that are part of the Service.
8. Miscellaneous Provisions.
8.1 Independent Contractors. The transaction described herein is an arms-length transaction between independent contracting parties. Neither party intends hereby to create a joint venture, partnership, or principal/agent relationship. Neither party shall have the right to create an obligation, liability or responsibility of any kind, whether expressed or implied, in the name of, or on behalf of, the other party and no employee of one of the parties shall be deemed for any reason to be an employee of the other.
8.2 Assignment; Change of Control. Except as otherwise set forth herein, this Agreement and the rights and obligations under this Agreement may be assigned by either party. Company agrees that Customer may transfer or assign this Agreement pursuant to a stock or asset sale resulting in a “Change of Control” (as hereafter defined), provided that such transferee assumes any and all of Customer’s obligations pursuant to this Agreement, including all obligations to pay any and all outstanding fees or other consideration due Company, and any fees or other consideration due, owing, or accruing under this Agreement on or after the date of transfer.
(i) Upon a Change of Control, the License granted herein between the Parties (including all rights and obligations) will transfer to the successor or surviving entity on the same terms as conditions as set forth herein.
(ii) A party subject to a Change of Control shall provide the other party with express written notice of any Change of Control, within ten (10) business days of the effective date of any such Change of Control. Such notice shall include reasonable, but specific details as to the identity of the transferee or controlling entity, to enable the other party to easily contact and communicate with such transferee or controlling party, including individual and entity names and contact information.
(iii) For the purposes of this Agreement, a “Change of Control” is defined as:
The sale or transfer of more than 50% of either Party’s assets, or merger or acquisition which results in the stockholders of either Party immediately prior to such sale, merger or acquisition having less than 50% of the surviving entity’s voting power immediately after such transaction. In such cases, the non-exclusive license between the Parties (as well as all rights and responsibilities) will transfer to the successor or surviving entity upon such a Change of Control under the same terms established between the Parties. The Parties agree that each will notify the other Party within ten (10) business days of a resulting Change of Control.”
8.3 Notices. Any notice or other communication under this Agreement shall be in writing and shall be deemed given if delivered (i) personally or mailed by registered mail (return receipt requested) at the addresses set forth on the first page hereof, or at such other address as shall be specified by notice given pursuant hereto, (ii) by confirmed facsimile transmission, or (iii) by electronic mail for which a delivery receipt has been generated.
8.4 Severability. The invalidity or unenforceability of any term or provision of this Agreement shall not affect the validity or enforceability of the remaining terms or provisions hereof, which shall remain in full force and effect.
8.5 No waiver. No failure or successive failures on the part of either party to enforce any covenant or agreement contained herein, and no waiver or successive waivers on its or their part of any condition of this Agreement shall operate as a discharge of such covenant, agreement, or condition, or render the same invalid, or impair the right of either party, its respective successors and permitted assigns, to enforce the same in the event of any subsequent breach or breaches by the other party, its successors or permitted assigns.
8.6 Governing Law and Jurisdiction. The parties agree that the laws of the State of New Jersey (without giving effect to its conflicts of law principles) govern all matters and actions arising out of or relating to this Agreement, including, without limitation, its validity, interpretation, construction, performance, and enforcement. Both parties agree to the State and Federal courts located in the State of New Jersey as proper venue and jurisdiction for any dispute arising out of this Agreement.
8.7 Prevailing Party’s Fees. The prevailing party in any action relating to this Agreement shall be entitled to payment of all costs, expenses, losses, damages and reasonable attorneys’ fees incurred in defending or prosecuting any such claim, suit or proceeding. The determination of the “prevailing party” for these purposes shall be made by the court exercising jurisdiction over the matter.
8.8 Entire Agreement. This Agreement, including the schedules and/or exhibits attached hereto, constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all previous agreements and understandings, whether oral or written, express or implied, with respect to its subject matter. Except as may be expressly authorized herein, this Agreement may not be altered, amended, or modified except by written instrument signed by the duly authorized representatives of both parties.
8.9 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which shall be considered together as one and the same instrument. Further, in making proof of this Agreement, it shall not be necessary to produce or account for more than one (1) counterpart signed by the party against whom enforcement is sought.
8.10 Signatory Authority. The individual accepting the terms of this License and signing this Agreement for Customer, is duly authorized to execute contracts on behalf of Customer and Company, and to bind the Parties.