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This SoloSegment Master Software License Agreement (this “Agreement”) is entered into by SoloSegment Inc. (“SoloSegment”) and the Customer named in the applicable Order Form referencing this Agreement (“Customer”). This Agreement governs Customer use of the SoloSegment product(s) or service(s) expressly set forth on the applicable Order Form(s). 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. 

1.           DEFINITIONS.  Certain capitalized terms used herein are set forth below, other terms shall have the respective meanings set forth elsewhere in this Agreement.

Customer Websites” means websites operated by Customer in connection with which Customer uses the Services.

Documentation” means and includes all written and other materials supplied by SoloSegment 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 SoloSegment for use in conjunction with the testing and use of the Services;

Order Form” means an order form that has been signed and executed by both Customer and SoloSegment, and which shall specify, among other items, the Services ordered, the Term of the applicable Order Form and applicable Fees (as defined below).  Any additional terms or changes to the terms of this Agreement within an Order Form will apply only to the Services described therein.  

Services” means (a) access to the Software in a hosted environment that is managed by SoloSegment and (b) any other services that SoloSegment may offer to licensees of the Software as described on the applicable Order Form.

Software” means the SoloSegment software specified on the applicable Order Form to which access is provided via the Services, and includes any change, improvement, enhancement, extension, upgrade or other new version or release thereof that is developed or otherwise made generally available by SoloSegment in connection with the Services to Customer. 

Term” means the period of time identified on each Order Form, for which SoloSegment has agreed to provide and Customer has committed to pay for, the applicable Services.

2.          LICENSES.  Subject to the terms and conditions of this Agreement, SoloSegment grants Customer a limited, nonexclusive, revocable, non-sublicensable, nontransferable license during the Term to access and use the Software, solely for Customer’s internal business purposes, as set forth in the applicable Order Form.  All rights not expressly granted to Customer are reserved by SoloSegment. SoloSegment reserves the right to modify the Software or Services at any time, provided that SoloSegment will not materially reduce the functionality of the Software or Services. Customer agrees that Customer’s purchase of Services is not contingent on the delivery of any future functionality or features or dependent on any oral or written comments made by SoloSegment regarding future functionality or features.

3.          PAYMENT; TAXES.

3.1.   Fees.  Customer will pay SoloSegment the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”).  SoloSegment shall invoice Customer for the Fees annually in advance or as indicated in the applicable Order Form.  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.  SoloSegment reserves the right to limit data collection, API calls and other volumes if Customer exceeds the volumes indicated on the Order Form. SoloSegment 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 thencurrent renewal Term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that SoloSegment has billed Customer incorrectly, Customer must contact SoloSegment 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 SoloSegment’s customer support department.

3.2.   Payment.  Except as specified herein or in an Order Form, the invoiced amounts are due and payable within thirty (30) days of the invoice date. Payment shall be made without any right of set-off or deduction.  All payments made pursuant to this Agreement shall be made in the quoted currency and are nonrefundable. In the event that SoloSegment terminates this Agreement pursuant to Section 4.2 or 4.3 hereunder, Customer is responsible for full payment of the Fees for the remainder of the then-current Term (as set forth in the applicable Order Form).

3.3.   Late Payment.  Any amount not paid when required to be paid under this Agreement shall accrue interest at the rate of one and one-half percent (1.5%) per month or at the highest amount permitted by applicable law (if lower). For payments that are more than ten (10) days late, without limiting SoloSegment’s other rights and remedies, SoloSegment may suspend Customer’s access to the Services until payment in full has been made.  

3.4.   Taxes.  All fees are exclusive of applicable local, state, federal and international sales, value added, withholding and other taxes and duties of any kind. Customer shall be responsible for payment of such taxes and duties of any kind, other than SoloSegment’s net income. Without limitation, Customer will be responsible for all applicable sales taxes unless it first claims a sales tax exemption by providing SoloSegment with an exemption certificate acceptable to the applicable authorities.

3.5.   Customer solely responsible.  The parties agree and Customer acknowledges that SoloSegment 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 SoloSegment, and that delivery and satisfaction of any such fees and consideration is the sole obligation of Customer.

3.4.   Free Trials and Other Promotions: SoloSegment 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. 

4.          TERM AND TERMINATION.

4.1.   Term.  This Agreement shall commence on the effective date specified on the applicable Order Form and shall continue in effect until the last to expire Order Form expires, until or unless terminated earlier as set forth below.  Except as otherwise provided in the applicable Order Form, the Term shall automatically renew for successive periods of one (1) year or such other period specified in an applicable Order Form, unless either party gives at least sixty (60) days’ notice of non-renewal prior to the expiration of the then-current Term. 

4.2.   Termination for Breach.  Without limiting any termination rights set forth in an Order Form, either party may terminate this Agreement immediately in the event the other party commits a material breach of this Agreement and fails to remedy that breach within thirty (30) days of receipt of notice of material breach.

4.3.   Termination for Cause.  Without limiting any termination rights set forth in an Order Form, SoloSegment may terminate this Agreement upon written notice to Customer (a) in the event of Customer’s unauthorized use of the Services or Software, (b) if Customer fails to make timely payment to SoloSegment, (c) if Customer violates Section 5; or (d) 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.

4.4.   Survival.  Upon any expiration or termination of any Order Form or this Agreement, all corresponding rights, obligations and licenses of the parties shall cease, except (a) all obligations accrued prior to the effective date of termination (including without limitation, all payments) shall survive, (b) Customer shall cease using the Services, and (c) Sections [TO BE UPDATED IN FINAL] of this Agreement shall survive the termination of any Order Form or this Agreement for any reason. 

5.          PROPRIETARY RIGHTS.  

5.1.   SoloSegment Ownership.  Except for the licenses explicitly granted in this Agreement, all right, title and interests in and to the intellectual property and proprietary rights of whatever nature in the Software and the Services, including derivative works, are and shall remain the exclusive property of SoloSegment and/or its suppliers.  SoloSegment and its suppliers reserve any and all rights not expressly granted in this Agreement. SoloSegment is a trademark of SoloSegment Inc., and shall not be used by Customer without SoloSegment’s express authorization.

5.2.   Restrictions.  Customer represents, warrants and covenants that it shall not directly or indirectly (a) include in Customer Data any unencrypted personally identifiable information or sensitive information; (b) encumber, lease, rent, loan, sublicense, transfer or distribute the Software or any Services; (c) use the Software or Services, or allow the transfer, transmission, distribution, export or re-export of all or any part of the Software or Services, in violation of any export control laws or regulations of the United States or any other relevant jurisdiction; (d) use the Software or Services for the benefit of any third party; (e) make the Software, Services, or Documentation publicly available, or reproduce, transmit, or distribute the Software, Services, or Documentation in any manner not explicitly authorized herein; (f) copy, adapt, analyze, decompile, disassemble, reverse engineer, modify, translate (or the like) the Software, Services or Documentation; or (g) permit any third party to engage in any of the foregoing proscribed acts.

5.3.   Feedback. All Customer (a) suggestions for correction, change or modification to the Services and (b) other feedback, information and reports provided to SoloSegment hereunder (collectively, “Feedback”), will be the property of SoloSegment and Customer shall and hereby does assign any rights in such Feedback to SoloSegment.  Customer agrees to assist SoloSegment, at SoloSegment’s expense, in obtaining intellectual property protection for such Feedback, as SoloSegment may reasonably request.

6.          CUSTOMER DATA.

6.1.   License. Customer hereby grants to SoloSegment a non-exclusive, worldwide license to display, modify, distribute, perform and reproduce any data provided by or on behalf of Customer to SoloSegment as part of the Services (“Customer Data”) in order to provide and optimize the Software or Services to Customer. 

6.2.   Obligations.  Customer’s represents and warrants that Customer’s use and provision of Customer Data as contemplated hereunder shall comply with this Agreement and any applicable laws and regulations.  Customer is solely responsible for Customer Data.  Except as otherwise specified in this Agreement or an applicable Order Form, Customer is responsible for the proper configuration of Customer Data for use in the Services and for maintaining the security of Customer Data. 

6.3.   Aggregate Information.  Aggregate Information” means aggregated or de-identified data collected or derived from the use of the Software or Services, provided that none of the foregoing specifically reveals any personally-identifying information.  SoloSegment may collect and use Aggregate Information to gauge usage levels and performance, improve the Software and Services (including without limitation any algorithms or models related thereto), ensure the Software’s proper operation and promote SoloSegment’s Software and Services.  As between the parties, Aggregate Information and any materials that it is used to produce are the sole and exclusive property of SoloSegment.  

6.4.   [California Consumer Privacy Act.  The parties acknowledge and agree that SoloSegment is a service provider for the purposes of the California Consumer Privacy Act (“CCPA”) and is receiving personal information from Customer pursuant to the Agreement for a business purpose.  SoloSegment shall not sell any such personal information.  SoloSegment shall not retain, use or disclose any personal information provided by Customer pursuant to the Agreement except as necessary for the specific purpose of performing the services for Customer pursuant to the Agreement, or otherwise as set forth in the Agreement or as permitted by the CCPA.  The terms “personal information,” “service provider,” “sale,” and “sell” are as defined in Section 1798.140 of the CCPA, and SoloSegment will be considered a “service provider” pursuant to Section 1798.140 of the CCPA.  SoloSegment certifies that it understands the restrictions of this Section 6.4.]

6.5.   Privacy.  Customer represents, warrants, and covenants that (a) Customer will not and will not assist or permit any third party to, pass information to SoloSegment that SoloSegment could use or recognize as personally identifiable information; (b) Customer will have, post, and abide by an appropriate Privacy Policy and will comply with all applicable laws, policies, and regulations relating to the collection of information from users and visitors of any and all Customer properties through which Customer collects Customer Data provided hereunder (including without limitation all Customer Websites) (each, a “Visitor”); (c) Customer’s Privacy Policy must provide notice of Customer’s use of cookies that are used to collect data as required by applicable laws, policies, and regulations; (d) Customer will use commercially reasonable efforts to ensure that all Visitors are provided with clear and comprehensive information about, and consents to, the storing and accessing of cookies or other information on the Visitor’s device where such activity occurs in connection with the Service and where providing such information and obtaining such consent is required by law; (e) Customer shall not circumvent any privacy features (e.g., an opt-out) that are part of the Service. Without limiting the foregoing, Customer’s posted Privacy Policy must disclose the use of the Software and Services and how they collect and process data. This can be done by displaying a prominent link to the site “SoloSegment’s Client Privacy Policy”, (located at https://solosegment.com/privacy-policy/client-privacy-notice/). 

7.          WARRANTY AND DISCLAIMER.  

7.1.   SoloSegment’s Limited Warranty.  SoloSegment warrants the Software furnished to Customer to be free from defects in materials and workmanship under normal use for thirty (30) days from the date of delivery.  This warranty shall only apply if (a) the Software has not been modified or altered by anyone other than SoloSegment; (b) the Software has been properly used at all times in accordance in all material respects with the Documentation; (c) the Software has not been subjected to misuse, neglect, or unusual physical, electrical, or electromagnetic stress; and (d) Customer is in compliance with all applicable hardware and related software requirements.  If the Software, when used in accordance with the Documentation, fails to perform as warranted above, Customer’s sole remedy and SoloSegment’s exclusive liability shall be to use reasonable efforts to correct the Software so that it performs as warranted.  SoloSegment is not responsible for Customer’s hardware or software employed in using the Services. 

7.2.   Customer’s Representations and Warranties.  Customer hereby represents, warrants and covenants as follows:

          7.2.1.   Customer has all necessary rights, authorizations, permissions, and consents for Customer’s use, and SoloSegment’s provision, of the Services as contemplated hereunder, including without limitation with respect to the Customer Websites and all Customer Data;

          7.2.2.   Customer will use the Software and Services only in conformance with the terms and conditions of this Agreement and only in compliance with the Documentation; and

          7.2.3.   The individual accepting the terms of this Agreement for Customer is duly authorized to execute contracts on behalf of Customer and SoloSegment, and to bind Customer hereto.

7.3.          DISCLAIMER.  EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SOLOSEGMENT DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SOFTWARE OR 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 OR SERVICES 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.

8.          INDEMNITY.

8.1.   Customer Indemnity.  Customer shall indemnify, defend, and hold SoloSegment and its affiliates and licensors, and its and their employees, officers, directors, and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and court costs) to the extent arising out of or in connection with Customer’s use of or access to the Software or Services, except for claims that the Software infringes or misappropriates a third party’s intellectual property rights as expressly described in Section 8.2 below.

8.2.   SoloSegment Indemnity.  SoloSegment shall indemnify, defend, and hold Customer harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and court costs) to the extent arising out of or in connection with a third party claim that the Software infringes or misappropriates such third party’s intellectual property rights.  The foregoing obligation shall not apply to: (a) modifications to the Software made by any party other than SoloSegment or its agents or made by SoloSegment at Customer’s request, if the alleged infringement relates to such modification, (b) combinations or use of the Software with any products, processes or materials not provided by SoloSegment where the alleged infringement relates to such combination or use, or (c) infringement or misappropriation of any intellectual property right in which Customer has an interest. If the Software becomes or, in SoloSegment’s opinion, is likely to become the subject of an injunction, SoloSegment may, at its option, (i) procure for Customer the right to continue using such Software as contemplated hereunder, (ii) modify the Software to make it non-infringing (without substantially compromising its functionality), or, if (i) and (ii) are not reasonably practicable, then (iii) terminate Customer’s license to the Software and refund the Fees actually paid for such infringing technology with a prorated deduction to account for Customer’s use thereof.  The foregoing states the entire liability of SoloSegment with respect to infringement of intellectual property rights.

8.3.   Indemnity Procedure.  Each party’s indemnification obligations under this Section 8 are expressly contingent upon the party seeking indemnification giving the indemnifying party: (a) prompt written notice of any such claim or allegation for which indemnity is sought; (b) sole control over the defense and settlement thereof; and (c) reasonable assistance in such defense or settlement as the indemnifying party may request.

9.          LIMITATION OF LIABILITY. SOLOSEGMENT SHALL HAVE NO LIABILITY TO CUSTOMER WITH RESPECT TO SOLOSEGMENT’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 SOLOSEGMENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT SHALL SOLOSEGMENT’S AGGREGATE LIABILITY HEREUNDER FOR ANY CAUSE IN ANY CALENDAR YEAR ARISING OUT OF OR RELATED TO SOLOSEGMENT’S PERFORMANCE OR NON-PERFORMANCE UNDER THIS AGREEMENT OR OTHERWISE EXCEED THE AMOUNT OF THE FEES PAID HEREUNDER TO SOLOSEGMENT 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.

10.          MISCELLANEOUS.

10.1.   Governing Law; Attorneys’ Fee; Severability; NoticeThis Agreement is made under and will be governed by and construed in accordance with the laws of the State of Delaware, without applying conflicts of law rules.  Exclusive jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in Delaware having jurisdiction over SoloSegment’s offices, and both parties consent to the jurisdiction of such courts with respect to any such action. In any action to enforce this Agreement the prevailing party will be entitled to costs and attorneys’ fees.  In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested or when receipt is electronically confirmed, if transmitted by facsimile or e-mail. Notices to SoloSegment must be sent to: SoloSegment Inc., Ste L #32250, 40 Clinton St, Newark, NJ 07102. Notices to Customer must be sent to the address and/or email address specified on the Order Form(s).

10.2.   Injunctive Relief.  Each party agrees that, in the event of any breach or threatened breach of Sections 2 or 5, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law.  Accordingly, the non-breaching party shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.   

10.3.   Assignment.  Customer may not assign this Agreement or its rights or obligations under this Agreement to any person or party, whether by operation of law or otherwise, without SoloSegment’s prior consent (at SoloSegment’s sole discretion).  SoloSegment may assign this Agreement to any third party without Customer’s prior consent.

10.4.   No Waiver; Limitations.  Failure by either party to exercise any right or remedy under this Agreement does not signify acceptance of the event giving rise to such right or remedy. To the extent permitted by applicable law, no action, regardless of form, arising out of this Agreement may be brought by Customer more than one (1) year after the cause of action has accrued.

10.5.   Compliance with Laws.  Each party will comply with all applicable laws, rules, and regulations, including those relating to export control.

10.6.   U.S. Government Restricted Rights.   If the Services are being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense (“DOD”) acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), the government’s rights in such Software and any documentation, including its rights to use, modify, reproduce, release, perform, display or disclose software or any documentation, will be subject in all respects to the license rights and restrictions provided in this Agreement.

10.7.   Force Majeure.  Except for performance of a payment obligation, neither party will be liable to the other by reason of any failure in performance of this Agreement if the failure arises out of the unavailability of communications facilities or energy sources, acts of God, acts of the other party, acts of governmental authority, fires, strikes, delays in transportation, riots, terrorism, war, or any causes beyond the reasonable control of that party.

10.8.   Endorsement.  During the Term of this Agreement, Customer agrees to be a reference for SoloSegment and participate in a SoloSegment case study, and participate in a press release regarding Customer’s subscription to the Software, as mutually agreed upon.  Neither party shall release its press release without first providing such press release to the other party for its review and approval, which approval shall not be unreasonably withheld or delayed.

10.9.   Entire Agreement.  This Agreement together with the applicable attachments, exhibits and schedules attached hereto and web pages incorporated herein by reference constitute the entire agreement between the parties hereto pertaining to the subject matter hereof, and any and all written or oral agreements heretofore existing between the parties hereto are expressly cancelled.  Any modifications or waivers of this Agreement must be in writing and signed by both parties hereto.

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