This Customer Agreement (the “Agreement”) is a legal agreement between the company or individual person, as applicable, set forth on the registration page (“Customer”) and Pitchbox, Inc. (“Pitchbox”). This Agreement specifies the terms under which Customer may use the Platform. Please read this Agreement carefully before accessing the Platform, because by accessing the Platform, clicking “I Agree,” or otherwise manifesting assent to this Agreement, Customer agrees to be bound by the terms of this Agreement. If Customer does not agree to (or cannot comply with) all of the terms of this Agreement, do not access or use the Platform. The person executing this Agreement on behalf of Customer represents that he or she is an authorized representative of Customer capable of binding Customer to this Agreement.
The definitions for some of the defined terms used in this Agreement are set forth in Section 11. The definitions for other defined terms are set forth elsewhere in this Agreement.
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Customer and Pitchbox (collectively, the “Parties” and each, a “Party”) hereby agree as follows:
1. LICENSE GRANTS BY PITCHBOX; RESTRICTIONS ON USE.
1.1 License Grants by Pitchbox. Subject to the terms and conditions of this Agreement, Pitchbox hereby grants to Customer during the Term:
(a) a limited, non-exclusive, non-transferable (except as permitted under Section 10 below) license, without the right to grant sublicenses, to authorize Administrators and Users to access and use the Platform. Customer shall be responsible to Pitchbox for any and all acts or omissions of the Administrators and Users. Pitchbox reserves the right to change the availability of any feature, function, or content relating to the Platform, at any time, without notice or liability; and
(b) if Customer is an ad or PR agency, a limited, non-exclusive, non-transferable (except as permitted under Section 10 below) license to authorize Customer’s clients to access and use the Platform solely to view reports and metrics regarding their campaigns. Customer shall be responsible to Pitchbox for any and all acts or omissions of its clients.
1.2 Restrictions on Use. Customer will not (and will not enable any third party to) make any use or disclosure of the Platform that is not expressly permitted under this Agreement. Without limiting the foregoing, unless expressly permitted hereunder, Customer will not (and will not enable any third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Platform; (ii) modify, adapt, translate, or reproduce the Platform; (iii) resell, distribute, or sublicense the Platform; make the Platform available on a “service bureau” basis, or otherwise authorize any third party to use or access the Platform; (iv) remove or modify any proprietary marking or restrictive legends placed on the Platform; (v) use the Platform in violation of any Applicable Laws or Pitchbox’s acceptable use policy, which is attached hereto and incorporated herein as Schedule A, or for any purpose not specifically permitted in this Agreement; or (vi) introduce into the Platform any virus, worm, “back door,” Trojan Horse, or similar harmful code. If Customer violates this Section 1.2, Pitchbox reserves the right, in its sole discretion, to deny Customer and its Administrators, Users, and client access to the Platform, or any portion of thereof, without notice, and to remove any Data that do not adhere to these guidelines.
2. SUBMISSION OF DATA; LICENSE GRANTS BY CUSTOMER.
2.1 Submission of Data. During the Term, Customer may periodically upload Data to the Platform.
2.2 License Grants. Subject to the terms of this Agreement, Customer hereby grants to Pitchbox and its Affiliates:
(a) a non-exclusive, worldwide, fully paid-up, royalty-free right and license during the Term to view, use, copy, encode, store, archive, distribute, transmit, combine, and modify the Data, in whole or in part, through the Platform solely in connection with providing Customer access to and usage of the Platform;
(b) a worldwide, fully paid-up, royalty-free right and license to anonymize Data (so that Customer is not identified), merge such anonymized data with other data, and use such anonymized and aggregated data for Pitchbox’s reporting, planning, development, and promotional purposes; and
(c) a non-exclusive, worldwide, fully paid-up, royalty-free right and license during the Term to use and copy the Customer Marks in any and all media now known or hereafter devised in connection with the marketing, advertising, and promotion of Pitchbox and the Platform, including, without limitation, listing Customer as a customer of Pitchbox. All goodwill generated by Pitchbox’s use of the Customer Marks as set forth herein shall inure to the benefit of Customer.
3. FEES; PAYMENT.
3.1 Fees. As consideration for the licenses granted in Section 1, Customer shall pay Pitchbox the periodic fee (e.g., annual, monthly, etc.) set forth on the Platform on the Pricing page (the “Fees”) for the applicable subscription period and capacity plan selected by Customer. Pitchbox may modify the Fees at any time by posting such modification on the Pricing page, and any such modification shall go into effect thirty (30) days after it is so posted. It is Customer’s responsibility to check for such modifications.
3.2 Payment. Pitchbox shall: (i) invoice Customer in advance for the Fees, including any applicable taxes, which Customer shall pay in full and without any setoffs within thirty (30) days of its receipt of same; or (ii) if Pitchbox has a credit card on file for Customer, Pitchbox may immediately authorize Customer’s credit card (or other approved facility) for the full payment of the Fees in advance. Unless otherwise stated on the invoice or at the time of payment, all payments will be charged and made in U.S. dollars.
3.3 Billing Information. Customer must provide current, complete, and accurate billing and credit card information. Customer must promptly update all billing information (such as billing address, card number, and expiration date) to keep its account current, complete, and accurate, and Customer must promptly contact Pitchbox if its credit card is lost or stolen, or if Customer becomes aware of a potential breach of account security (such as an unauthorized disclosure or use of its username or password). Customer authorizes Pitchbox to obtain or determine updated or replacement expiration dates for Customer’s credit card in the event that the credit card Customer provided Pitchbox expires. Pitchbox reserves the right to charge any renewal card issued to Customer to the same extent as the expired card. If payment is not received from Customer’s credit card issuer, Customer agrees to pay all amounts due upon demand. Customer agrees to pay all costs of collection, including attorney’s fees and costs, on any outstanding balance. In certain instances, the issuer of Customer’s credit card may charge Customer a foreign transaction fee or related charges, which Customer will be responsible to pay. Customer is advised to check with its bank and credit card issuer for details.
4. TERM AND TERMINATION.
4.1 Term. Unless otherwise terminated sooner in accordance with Section 4.2, this Agreement shall commence on the Effective Date and continue until the expiration of the subscription period selected by Customer (the “Initial Term”). Upon expiration of the Initial Term (and any Renewal Terms), the term of this Agreement will automatically renew for successive periods equal to the Initial Term (each, a “Renewal Term” and collectively with the Initial Term, the “Term”).
4.2 Termination. Customer may terminate this Agreement at any time for any reason or no reason via the admin interface on the Platform. Pitchbox may terminate this Agreement as follows: (i) immediately if Customer commits any breach of Section 1.2, if Customer’s credit card is declined, or if Customer fails to update its billing information; (ii) on five (5) days written notice to Customer if Customer breaches any other provision of this Agreement and fails to cure such breach within such period; and (iii) on thirty (30) days written notice to Customer for any reason or no reason.
4.3 Effect of Termination. Upon termination of this Agreement: (i) all rights and licenses granted hereunder will immediately cease; (ii) Customer will immediately cease all use and access of the Platform; (iii) Customer shall promptly pay any monies due and owing; and (iv) upon full payment and written request from Customer, Pitchbox shall export to Customer its Data. For the avoidance of doubt: (x) upon any termination, Pitchbox shall retain all Fees pre-paid by Customer; provided, however, if Pitchbox terminates this Agreement pursuant to Section 4.2(iii), Customer shall receive a pro-rata refund for any pre-paid Fees; and (y) if Customer does not request the export of its Data (or export the Data on its own) within thirty (30) days of the effective date of termination, such Data shall be forever deleted and purged from the Platform.
4.4 Survival. The following provisions will survive termination of this Agreement: Section 3 (“Fees; Payment”) until all payments are received by Pitchbox; Section 4.3 (“Effect of Termination”), Section 5 (“Ownership”), Section 6 (“Representations and Warranties; Disclaimer”), Section 7 (“Limitation of Liability”), Section 8 (“Indemnification”), Section 9 (“Confidentiality”), Section 10 (“General Provisions”), Section 11 (“Definitions”), and this Section 4.4 (“Survival”).
5. OWNERSHIP.
Pitchbox owns and shall own all right, title, and interest in and to the Platform and the Pitchbox trademarks, including all source code, object code, operating instructions, and interfaces developed for or relating to the same, together with all modifications, enhancements, revisions, changes, copies, partial copies, translations, compilations, and derivative works thereto, including all copyrights and other intellectual property rights relating thereto (the “Pitchbox Intellectual Property”). Customer will have no rights with respect to the Pitchbox Intellectual Property other than those expressly granted hereunder. Customer owns and shall own all right, title, and interest in and to the Data and the Customer Marks, and Pitchbox will have no rights with respect to the same other than those expressly granted hereunder.
6. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
6.1 Mutual Representations and Warranties. Each Party represents and warrants that it has the full right, power, and authority to enter into this Agreement, to discharge its obligations hereunder, and to grant the licenses granted hereunder.
6.2 Representations and Warranties of Customer. In addition to the representations and warranties set forth in Section 6.1, Customer represents and warrants that: (i) the Data and the Customer Marks and Pitchbox’s exercise of any license granted hereunder, do not and will not, infringe the rights of any third party, including without limitation any intellectual property rights, rights of privacy, or any other rights of third parties not specifically identified in this Agreement; and (ii) it shall comply with all Applicable Laws in the performance of its obligations, exercise of its rights, and use of the Platform under this Agreement.
6.3 Disclaimer. PITCHBOX CANNOT GUARANTEE THAT THE PLATFORM WILL BE AVAILABLE AT ALL TIMES, OR THAT EVERY ERROR OR PROBLEM RAISED BY CUSTOMER WILL BE RESOLVED. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6.1, THE PLATFORM AND ITS COMPONENTS, AND ANY OTHER MATERIALS PROVIDED BY PITCHBOX HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND PITCHBOX MAKES NO WARRANTY WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT PITCHBOX MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
7. LIMITATION OF LIABILITY. EXCEPT FOR (I) DAMAGES ARISING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (II) A PARTY’S INDEMNIFICATION OBLIGATIONS, (III) CUSTOMER’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS; OR (IV) CUSTOMER’S BREACH OF SECTION 1.2: (A) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY (OR ANY OTHER PARTY CLAIMING RIGHTS THROUGH SUCH PARTY) FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF; AND (B) EACH PARTY’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT WILL NOT EXCEED THE FEES PAID TO PITCHBOX HEREUNDER DURING THE PERIOD TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
8. INDEMNIFICATION. Each Party shall indemnify, defend, and hold harmless the other Party, and the other Party’s officers, directors, employees, attorneys, and agents (collectively, the “Indemnified Parties”) from and against any and all losses, liabilities, damages, fines, and claims, and all related costs and expenses (including reasonable legal fees and disbursements and costs of investigation, litigation, settlement, judgment, interest, and penalties) incurred by such Indemnified Parties in connection with any third-party claim, action, or proceeding (collectively, “Losses”) to the extent arising from, relating to, or alleging that the Party has breached any of its representations or warranties hereunder. In addition, Customer shall indemnify, defend, and hold harmless Pitchbox, and its officers, directors, employees, attorneys, and agents from and against any and all Losses to the extent arising from or relating to: (i) any breach of Section 1.2 by Customer, Administrators, Users, or Customer’s clients; and (ii) the use or misuse of the Platform by Customer, Administrators, Users, or Customer’s clients.
9. CONFIDENTIALITY. Customer shall not, directly or indirectly, use for its own benefit (other than to fulfill its obligations or exercise its rights hereunder) or disclose to any third party any trade secrets or non-public information of Pitchbox, passwords or other access credentials to the Platform, the financial information of Pitchbox, or the terms of this Agreement without the prior, written permission of Pitchbox.
10. GENERAL PROVISIONS. Customer acknowledges and agrees that the Platform is based in the United States. Pitchbox makes no claims concerning whether the Platform may be accessed or used or are appropriate outside of the United States. If Customer accesses the Platform from outside of the United States, it does so at its own risk. Whether inside or outside of the United States, Customer is solely responsible for ensuring compliance with the Applicable Laws of its specific jurisdiction. The failure of either Party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. Neither Party shall be liable to the other Party for any failure to perform its obligations hereunder to the extent such failure results from any cause beyond its reasonable control. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable, or sub-licensable by either Party, except with the other Party’s prior written consent, except to: (i) and Affiliate, or (ii) a successor to all or substantially all of that Party’s assets or business (for which no consent of the other Party is required). This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without regard to the conflict of laws provisions thereof. All claims or disputes arising out of or in connection with this Agreement shall be heard exclusively by any of the federal or state courts of competent jurisdiction located in the Commonwealth of Pennsylvania, and each Party irrevocably consents to the exclusive jurisdiction of, and venue in, such courts, and waives any: (i) objection it may have to any proceedings brought in any such court; (ii) claim that the proceedings have been brought in an inconvenient forum; and (iii) right to object (with respect to such proceedings) that such court does not have jurisdiction over such Party. Both Parties agree that this Agreement and the attached Schedule A is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement. Any modification to this Agreement must be in a writing signed by both parties; provided, however, that Pitchbox may modify this Agreement at any time by posting such modification on the Platform, and any such modification shall go into effect sixty (60) days after it is so posted. It is Customer’s responsibility to check for such modifications. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither Party has any authority of any kind to bind the other Party in any respect whatsoever.
11. DEFINITIONS.
11.1 “Administrator” means an employee or agent of Customer who registers to use the Platform and who administers Users’ access to and usage of the Platform on behalf of Customer.
11.2 “Affiliate” means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
11.3 “Applicable Laws” means any applicable national, federal, state, and local laws, rules, and regulations and/or self-regulatory guidelines, including, without limitation, the Controlling the Assault of Non-Solicited Pornography and Marketing (“CAN-SPAM”) Act (15 U.S.C. 7701 et seq. and its implementing regulations at 16 C.F.R. 316) and laws relating to advertising, the Internet, privacy, telemarketing, and unfair business practices.
11.4 “Customer Marks” means all trademarks, service marks, logos, and other distinctive brand features of Customer that are used in or relate to the Stories.
11.5 “Data” means all data provided by Customer, Administrators, Users, and Customer’s clients through the Platform, excluding any e-mails.
11.6 “Effective Date” means the date Customer accepted this Agreement.
11.7 “Platform” means Pitchbox’s proprietary platform used to develop new opportunities for sales, PR, and Internet marketing.
11.8 “User” means any employee or agent of Customer who is authorized by an Administrator to access and use the Platform.
CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.
SCHEDULE A – ACCEPTABLE USE POLICY (“AUP”)
Pitchbox respects that the Internet provides a forum for free and open discussion and dissemination of information, however, when there are competing interests at issue, Pitchbox reserves the right to take certain preventative or corrective actions. In order to protect these competing interests, Pitchbox has developed this AUP, which supplements and explains certain terms in the Agreement and is intended as a guide to your rights and obligations when utilizing the Platform. This AUP will be revised from time to time on written notice to you. Your use of the Platform after changes to this AUP are posted on the Platform shall constitute your acceptance of any new or additional terms.
One important aspect of the Internet is that no one party owns or controls it. This fact accounts for much of the Internet’s openness and value, but it also places a high premium on the judgment and responsibility of those who use the Internet, both in the information they acquire and in the information they disseminate to others. When you obtain information through the Internet via the Platform, you must keep in mind that we cannot, and do not make any attempt to, monitor, verify, warrant, or vouch for the accuracy and quality of the information that you may acquire. For this reason, you must exercise your best judgment in relying on information obtained from the Internet, and also should be aware that some material posted to the Internet is sexually explicit or otherwise offensive. Because we cannot monitor or censor the Internet, and will not attempt to do so, Pitchbox shall not be responsible for injury to you that results from inaccurate, unsuitable, offensive, or illegal Internet communications.
When you disseminate information through the Internet via the Platform, you must keep in mind that Pitchbox does not review, edit, censor, or take responsibility for any information you may create. When you place information on the Internet, you have the same liability as other authors for copyright infringement, defamation, and other harmful speech. Also, because the information you create is carried over our networks and may reach a large number of people, your postings may affect other subscribers and may harm our goodwill, business reputation, and operations. For these reasons, you violate this AUP and the Agreement when you engage in or facilitate the following prohibited activities:
1. Intellectual Property Violations. Using the Platform to engage in any activity that infringes or misappropriates the intellectual property rights of others, including copyrights, trademarks, service marks, trade secrets, patents, or privacy or publicity rights held by individuals, corporations, or other entities. We are required by law to remove or block access to user content upon receipt of a proper notice of copyright infringement. It is also our policy to terminate the privileges of users who violate copyright laws.
2. Obscene Speech or Materials. Using the Platform to view, advertise, transmit, store, post, display, or otherwise make available child pornography or obscene speech or material. We are required by law to notify law enforcement agencies when we become aware of the presence of child pornography on or being transmitted through the Platform.
3. Defamatory or Abusive Language. Using the Platform as a means to transmit or post defamatory, harassing, abusive, or threatening language.
4. Violation of Applicable Law. Using the Platform in violation of any applicable national, federal, state, and local laws, rules, and regulations and/or self-regulatory guidelines, including, without limitation, the Controlling the Assault of Non-Solicited Pornography and Marketing (“CAN-SPAM”) Act (15 U.S.C. 7701 et seq. and its implementing regulations at 16 C.F.R. 316) and laws relating to advertising, the Internet, privacy, telemarketing, and unfair business practices.
5. Forging of Headers. Using the Platform to forge or misrepresent message headers, whether in whole or in part, to mask the originator of the message.
6. Illegal or Unauthorized Access to Other Computers or Networks. Using the Platform to access illegally or without authorization computers, accounts, or networks belonging to another party, or attempting to penetrate security measures of another individual’s system (often known as “hacking”). Also, any activity that might be used as a precursor to an attempted system penetration (i.e. port scan, stealth scan, or other information gathering activity).
7. Distribution of Internet Viruses, Worms, Trojan Horses, or Other Destructive Activities. Using the Platform to distribute information regarding the creation of and sending Internet viruses, worms, Trojan horses, pinging, flooding, mailbombing, or denial of service attacks.
8. Export Control Violations. Using the Platform to export encryption software over the Internet or otherwise, to points outside the United States.
9. Other Activities. Using the Platform to engage in activities, whether lawful or unlawful, that Pitchbox determines to be harmful to our subscribers, operations, reputation, goodwill, or customer relations.
10. System Limits. Using the platform in a way that circumvents system limits set forth in pricing plans (including but not limited to: running outreach campaigns for multiple websites or clients within a single project) is strictly prohibited and will result in account termination until the issue is resolved.
As we have pointed out, the responsibility for avoiding the harmful activities just described rests primarily with you. We will not monitor the communications of our users to ensure that they comply with the Agreement, this AUP, or Applicable Law. However, if we become aware of harmful activities, we may take any action to stop the harmful activity, including, but not limited to, removing information, implementing screening software designed to block offending transmissions, denying you access to the Platform, or taking any other action that we deem appropriate.
We are also concerned with the privacy of on-line communications and websites. In general, the Internet is neither more nor less secure than other means of communication, including mail, facsimile, and voice telephone service, all of which can be intercepted and otherwise compromised. As a matter of prudence, however, we urge you to assume that all of your on-line communications are insecure. We cannot take any responsibility for the security of information transmitted over our networks, equipment, or facilities.
We hope this AUP is helpful in clarifying your obligations as responsible members of the Internet. Any complaints about a user’s violation of this AUP should be sent to abuse@pitchbox.com.
