Flocke SAAS Terms and Conditions
Effective as of January 1, 2019
The following outlines the terms of service of the Flocke Services (the “Terms of Service”) and is entered into by and between Flocke d/b/a Hawke Media, LLC (“Flocke”) and the entity or person placing an order for or accessing the Service (“Customer” or “you”). If you are accessing or using the Service on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “you” or “Customer” reference your company.
This Agreement consists of the terms and conditions set forth below and any Flocke ordering documents, online registration, order descriptions referencing this Agreement (“Order Forms”).
The “Effective Date“of this Agreement is the date which is the earlier of (a) Customer’s initial access to the Service (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this Agreement. This Agreement will govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.
You acknowledge and agree that Flocke may modify the terms and conditions of this Agreement at any time in accordance with Section 12 (Modifications to Agreement).
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING THE SERVICE, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE THE SERVICE. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.
- Flocke Service
The Service acts as a central hub for Customer’s Data, allowing the Customer to have its Customer Data collected from selected sources (“Sources”). The Customer Data will be delivered to various dashboards (dependent on Plan chosen).
1.2. Scripts and Access
“Customer Data“ means any data that Customer submits to the Service, including data that it collects from Customer Properties or retrieves from other Sources through the Service.
“Documentation“ means the end user technical documentation provided with the Service, as may be modified from time to time.
“Laws“ means all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data.
“Order Form“ is defined above.
“Sources” means any platform (e.g. WordPress, Instagram, Facebook, Pinterest) or software (e.g. google analytics) that Flocke will pull analytics from.
“Sensitive Personal Information“ means any of the following: (i) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS“); (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (“HIPAA“); (iii) any information deemed to be “special categories of data” of an EU resident (prior to May 25, 2018, as such term is defined in EU Data Protection Directive 95/46/EC; and on and after May 25, 2018, as defined in European Union Regulation 2016/679) or (iv) any other personal or sensitive information subject to regulation or protection under the Gramm-Leach-Bliley Act, Children’s Online Privacy Protection Act or other Laws.
“Service“ means the specific Flocke proprietary hosted service solution(s) specified on an Order Form, including the Flocke dashboard and any related Flocke Code and API(s).
1.4. Access to the Service
1.5. Use Restrictions
Customer shall not (and shall not permit any third party to): (a) rent, lease, provide access to or sublicense the Service to a third party; (b) use the Service to provide, or incorporate the Service into, any product or service provided to a third party; (c) use or attempt to use the Service for competitive analysis or benchmarking; (d) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Service, except to the extent expressly permitted by applicable law (and then only upon advance notice to Hawke); (e) copy, modify or create any derivative work of the Service or any Documentation; (f) remove or obscure any proprietary or other notices contained in the Service (including any reports or data printed from the Service); or (g) publicly disseminate information regarding the performance of the Service.
1.6. Storage and Processing of Customer Data
Flocke may store certain Customer Data submitted from Sources to enable various features and functionality of the Service, including for “replay” and re-sending of Customer Data to Dashboards at Customer’s direction. Customer acknowledges that Customer Data transmitted through the Service may be stored and processed by Hawke in the United States or in other countries in which Hawke or its subcontractors maintain facilities.
- SERVICE PLANS AND BETA RELEASES
2.1. Service Plans
Flocke makes available the Service through a Nest, Hatch and Soar Plan (“Plans”). Current plans are described at https://flockehq.com/services/ and Customer’s specific plan will be identified in the Order Form presented when Customer registers, orders or pays for the Service. Customer’s permitted scope of use – such as features available, and other usage limits – depends on the plan that Customer selects and will be specified on the applicable Order Form.
Plans are provided on a subscription basis for a set term designated on the Order Form (each, a “Subscription Term“). Unless otherwise specified on the applicable Order Form, each Subscription Term shall automatically renew for the same period as the then-current Subscription Term unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current Subscription Term (e.g., monthly Paid Plans will automatically roll over month-to-month and annual Paid Plans will automatically renew for additional 12-month periods).
- FEES AND PAYMENT
3.1. Fees and Payment
All fees for Paid Plans are as set forth in the applicable Order Form and shall be paid by Customer in accordance with the payment terms set forth in the Order Form. Flocke will invoice the Customer.
If no payment terms are specified in the Order Form, then the following default terms apply: (i) for monthly Plans, Customer will pay all fees at the first of the month and (ii) for Soar Plans, Customer will pay all fees within thirty (30) days of invoice. Except as expressly set forth in Section 12 (Modifications to Agreement), all fees are non-refundable. Flocke reserves the right to increase the rates specified in the Order Form upon any renewal of a Subscription Term. Customer is required to pay any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Flocke. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
- CUSTOMER OBLIGATIONS
4.1. Data Collection
4.2. Rights in Customer Data
Customer is solely responsible for the accuracy, content and legality of all Customer Data and agrees to comply with all applicable Laws in its use of the Service. Customer represents and warrants to Flocke that Customer has all necessary rights, consents and permissions to collect, share and use Customer Data as contemplated in this Agreement (including granting Flocke the rights in Section 6.1), without violation or infringement of (i) any third party intellectual property, publicity, privacy or other rights, (ii) any Laws, or (iii) any terms of service, privacy policies or other agreement governing the Customer Properties or Customer’s accounts with third-party Sources or Destinations. By enabling use of the Service with any Source or Destination, Customer authorizes Flocke to access Customer’s accounts with such Source or Destination for the purposes described in this Agreement. Flocke may also disclose that Customer is a customer of Flocke and related technical Service data to providers of third-party Sources and Destinations used by Customer with the Service.
4.3. No Sensitive Personal Information
Customer specifically agrees not to use the Service to collect, store, process or transmit any Sensitive Personal Information. Customer acknowledges that Flocke is not a Business Associate or subcontractor (as those terms are defined in HIPAA) or a payment card processor and that the Service is neither HIPAA nor PCI DSS compliant. Flocke shall have no liability under this Agreement for Sensitive Personal Information, notwithstanding anything to the contrary herein.
4.4. Indemnification by Customer
Customer shall indemnify, defend and hold harmless Flocke from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to any Customer Data or breach or alleged breach by Customer of Sections 4.2 (Rights in Customer Data) or 4.3 (No Sensitive Personal Information). This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation of Flocke at Customer’s expense.
Flocke agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of the Service or Customer Data. However, Flocke shall have no responsibility for errors in transmission, unauthorized third-party access or other causes beyond Flocke’s control.
6.1. Customer Data
As between the parties, Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data as provided to Flocke. Subject to the terms of this Agreement, Customer hereby grants to Flocke a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Data solely to the extent necessary to provide the Service to Customer.
6.2. Flocke Technology
This is a subscription agreement for access to and use of the Service. Customer agrees that Flocke or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Service, all Documentation, and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (as defined below). Except as expressly set forth in this Agreement, no rights in the Service or any Flocke technology are granted to Customer.
Customer, from time to time, may submit comments, questions, suggestions or other feedback relating to any Flocke product or service to Flocke (“Feedback“). Flocke may freely use or exploit Feedback in connection with any of its products or services.
6.4. Aggregated Anonymous Data
Notwithstanding anything to the contrary herein, Customer agrees that Flocke may obtain and aggregate technical and other data about Customer’s use of the Service that is non-personally identifiable with respect to Customer (“Aggregated Anonymous Data“), and Flocke may use the Aggregated Anonymous Data to analyze, improve, support and operate the Service and for distribution in general benchmarking data and industry reports. For clarity, this Section 6.4 does not give Flocke the right to identify Customer as the source of any Aggregated Anonymous Data.
- TERM AND TERMINATION; SUSPENSION
This Agreement is effective as of the Effective Date and will continue until terminated.
7.2. Termination for Cause
Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees or comply with applicable scope of use restrictions) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
7.3. Effect of Termination
Upon any expiration or termination of this Agreement, Customer shall immediately cease any and all use of and access to the Service (including any and all related Flocke technology), cease distributing any Flocke Code installed on Customer Properties, and delete (or, at Flocke’s request, return) any and all copies of the Documentation, any Flocke passwords or access codes and any other Flocke Confidential Information in its possession. Customer acknowledges that following termination it shall have no further access to any Customer Data in the Service, and that Flocke may delete any such data as may have been stored by Flocke at any time. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
7.4. Suspension of Service
In addition to Flocke’s termination and other rights under this Agreement, Flocke reserves the right to suspend Customer’s access to the Service (and any related services), in whole or in part, without liability to Customer and with immediate effect: (i) if Customer’s account is thirty (30) days or more overdue; (ii) if Customer exceeds any scope of use restrictions set forth in the applicable Order Form; (iii) if Customer has breached its express obligations under Sections 1.5 (Use Restrictions) or 4 (Customer Obligations); or (iv) to prevent harm to the Service or other Flocke customers.
The following Sections shall survive any expiration or termination of this Agreement: 1.5 (Use Restrictions), 3 (Fees and Payment), 4.4 (Indemnification by Customer), 6 (Ownership), 7 (Term and Termination; Suspension), 8 (Warranty Disclaimer), 9 (Limitation of Remedies and Damages), 10 (Confidential Information), 12 (Modifications to Agreement) and 13 (General Terms).
- WARRANTY DISCLAIMER
THE SERVICE AND ALL RELATED SERVICES ARE PROVIDED “AS IS”. NEITHER FLOCKE NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. FLOCKE DOES NOT WARRANT THAT CUSTOMER’S USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES FLOCKE WARRANT THAT IT WILL REVIEW THE CUSTOMER DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER DATA WITHOUT LOSS. CUSTOMER UNDERSTANDS THAT CUSTOMER DATA IS SHARED WITH DESTINATIONS AT CUSTOMER’S ELECTION AND FLOCKE TAKES NO RESPONSIBILITY FOR ANY DESTINATION’S USE OR PROTECTION OF CUSTOMER DATA ONCE IT HAS BEEN SHARED. FLOCKE SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF FLOCKE. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
- LIMITATION OF REMEDIES AND DAMAGES
9.1. Consequential Damages Waiver
EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) SHALL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
9.2. Liability Cap
FLOCKE’S (AND ITS SUPPLIERS’) ENTIRE LIABILITY TO CUSTOMER ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER TO FLOCKE DURING THE PRIOR TWELVE (12) MONTHS UNDER THIS AGREEMENT.
9.3. Excluded Claims
“Excluded Claims“ means (a) any claim arising from Customer’s breach of Section 1.5 (Use Restrictions); or (b) any claim arising under Section 4 (Customer Obligations).
9.4. Nature of Claims and Failure of Essential Purpose
The parties agree that the waivers and limitations specified in this Section 9 apply regardless of the form of action, whether in contact, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
- CONFIDENTIAL INFORMATION
Each party (as “Receiving Party“) agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party (“Disclosing Party“) constitute the confidential property of the Disclosing Party (“Confidential Information“), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Flocke technology, performance information relating to the Service, and the terms and conditions of this Agreement shall be deemed Confidential Information of Flocke without any marking or further designation. Except as expressly authorized herein, the Receiving Party shall (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for Flocke, the subcontractors referenced in Section 13.10), provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 10 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 10. The Receiving Party’s confidentiality obligations shall not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
Customer agrees to participate in reasonable marketing activities that promote the benefits of the Service to other potential customers and to use of Customer’s name and logo on Flocke’s web site and in Flocke promotional materials.** **Customer agrees that Flocke may disclose Customer as a customer of Flocke.
- MODIFICATIONS TO AGREEMENT
Flocke may modify the terms and conditions of this Agreement (including Service pricing and plans) from time to time, with notice given to Customer by email or through the Service. If Customer has a Developer Plan or a Trial Plan, then any modifications will become effective immediately, and if Customer disagrees with the modifications, Customer’s exclusive remedy is to terminate this Agreement and cease using the Service. If Customer has a Paid Plan, Customer must notify Flocke within thirty (30) days of notice of the modifications that Customer does not agree to such changes, and Flocke (at its option and as Customer’s exclusive remedy) may either: (a) permit Customer to continue under the prior version of this Agreement until expiration of the then-current Subscription Term (after which time the modified Agreement will apply) or (b) allow Customer to terminate this Agreement and receive a pro-rated refund of any fees Customer has pre-paid for use of the Service for the terminated portion of the applicable Subscription Term. Upon any changes to this Agreement, Customer may be required to click to agree to the modified Agreement in order to continue using the Service, and in any event continued use of the Service after the modifications take effect constitutes Customer’s acceptance of the modifications.
- GENERAL TERMS
This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that Flocke may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of Flocke’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 13.1 will be null and void.
If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
13.3. Governing Law; Jurisdiction and Venue
This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in Los Angeles, California and both parties hereby submit to the personal jurisdiction of such courts.
13.4. Attorneys’ Fees and Costs
The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
Any notice or communication to Flocke that is required or permitted under this Agreement shall be in writing to Flocke at the address set forth in Section 13.6 (Flocke Contact Information) below or at such other address as directed by Flocke, and shall be deemed to have been received by Flocke (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail. Flocke may send notices to Customer through Customer’s email on file or through the Service. All notices given to Customer shall be deemed to have been received by Customer upon delivery.
13.6. Flocke Contact Information
Any Customer questions, complaints or claims regarding the Service should be sent to the following address:
Hawke Media, LLC
1640 5th Street, No. 107
Santa Monica, CA 90401
No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
13.8. Entire Agreement
This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Customer acknowledges that the Service is an on-line, subscription-based product, and that in order to provide improved customer experience Flocke may make changes to the Service, and Flocke will update the applicable Documentation accordingly.
13.9. Force Majeure
Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
Flocke may use the services of subcontractors and permit them to exercise the rights granted to Flocke in order to provide the Service under this Agreement. These subcontractors may include, for example, Flocke’s hosting, infrastructure and CDN providers. Flocke remains responsible for compliance of any such subcontractor with the terms of this Agreement and the overall performance of the Service as required under this Agreement.
Nothing in this Agreement prevents Flocke from disclosing Customer Data to the extent required by law, subpoenas, or court orders, but Flocke shall use commercially reasonable efforts to notify Customer where permitted to do so.
13.12. Independent Contractors
The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
13.13. Export Control
In its use of the Service, Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (ii) Customer shall not (and shall not permit any of its users to) access or use the Service in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer shall not submit to the Service any information that is controlled under the U.S. International Traffic in Arms Regulations.
13.14. Government End-Users
Elements of the Service are commercial computer software. If the user or licensee of the Service is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Service, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Service was developed fully at private expense. All other use is prohibited.