Working Agreement and Contract for Services

Contract for marketing, advertising and creative development services:

Content Fresh LLC will make every effort to create innovative online marketing communications for [Client Name/ Business Name / Address] (the “Client”). This Agreement outlines the terms of our working relationship:

1. Authorization: The Client hereby engages Content Fresh LLC, located in Daphne, Ala., as an independent contractor for online marketing and social media services. The Client hereby authorizes Content Fresh to promote the Client’s business online in Google My Business, Facebook, Twitter, Instagram and other social media outlets (the “Work”). The Client represents and warrants to Content Fresh LLC that Client owns or has license to use in the manner contemplated by this Agreement all copyrights, trademarks, trade dress, service marks, brand names or other intellectual or artistic property associated with the Content. The “Content” is defined as follows: [written content for website, social media, e-mail newsletters, blogs and all associated graphic images, photography, videography or audio files ] or as otherwise agreed to by the parties in writing hereafter.

2. Assignment Of Work: Content Fresh LLC reserves the right to assign the Work to other designers or subcontractors from time to time in its sole discretion to ensure quality and on-time completion of services. Content Fresh LLC will make every effort to meet agreed upon due dates, provided, however, the Client’s failure to submit required information or materials may cause delays in site updates and/or advertising campaigns.

3. Grant Of Rights: Upon receipt of full payment, Content Fresh LLC grants to the Client rights of ownership in the finished Work (the Content on site in published form) and all additional materials paid for by Client.

4. Reservation Of Rights: All rights not expressly granted hereunder are reserved to Content Fresh LLC, including but not limited to all rights in creative advertising copy, ideas and suggestions for contests, keywords and other items used to stimulate interest in Client’s business or the Content. If such ideas are presented, and not implemented (or not paid for) by Client then they shall be the confidential property of Content Fresh LLC.

5. Release And Indemnity: The Client hereby releases, indemnifies and holds harmless Content Fresh LLC against any and all claims, damages, liabilities, complaints, promises (express or implied), lost profits, breach of contract, tort, or violation of copyright, trademark, trade dress, service mark, brand names or other rights to intellectual or artistic property associated with the Content, this Agreement or the parties’ relationship.

6. Social Media and Web Site Content Services: The Client agrees to supply direction and topics for content posts. Content Fresh LLC will take responsibility to post content updates to occur at regular intervals as per contract agreement. The Work includes updates to Web page(s) and social media business pages.

7. Payment. Client shall pay Content Fresh LLC agreed upon through approved estimates and company invoices.

8. Services: Monthly fees include the appropriate amount of time necessary to manage Content updates on a regular, consistent basis and includes up to 2 hours discussion time (phone, online or e-mail) per month. Additional research requested, client consultation, or client meetings will be billed on a monthly basis at current hourly rate in addition to the payments required by Section 7 of this Agreement. These fees will be added as necessary to the monthly bill. Payments are due no later than 15 days after receipt of invoice. If payment is not received within 30 days of invoice date, a late fee of 5% of the outstanding balance will be incurred and added to delinquent invoice, with an additional 5% every 30 days thereafter until payment in full is made.

9. Termination: This Working Agreement and Contract for Services is terminable at will by either party on 30 days written notice. In the event of termination, Content Fresh LLC shall have the right to bill pro rata for Work completed through the date of written notice of termination.

10. Expenses: Client agrees to reimburse Content Fresh LLC for any expenses reasonably necessary in completion of the Work: (e.g. Fonts, Messengers, Proofs, Props, Research, Shipping, Software, Stock photography, Travel, Telephone).

11. Arbitration: Any disputes arising out of or relating to this Agreement, the Content or the relationship between or among the Parties, shall be submitted to binding arbitration pursuant to the CPR Rules For Non-Administered Arbitration. The Arbitrator’s award shall be final and binding, and judgment may be entered thereon in any court having jurisdiction thereof. The Client shall pay all arbitration and court costs, reasonable attorney fees and legal interest on any award or judgment in favor of Content Fresh LLC.

12. Severability: If any provision of this Working Agreement and Contract for Services shall be held unlawful, void, or for any reason unenforceable, then that provision shall be severable from the remainder of this Working Agreement and Contract for Services and shall not affect the validity and enforceability of the remaining provisions.

Content Fresh LLC and Client agree to the terms of this Working Agreement and Contract for Services. The Parties represent and warrant that they have authority to execute this Working Agreement and Contract for Services.

Content Fresh Cloud Terms of Service

 Last modified: January 31, 2024

 These terms and conditions and all applicable service-specific terms (“Terms of Service” or “Agreement“) govern your access to and use of any websites, mobile sites, mobile applications, products or services offered by Content Fresh LLC. (“Content Fresh Cloud” “we” “us“) based on the plan you purchased (the “Services“)

BY ACCESSING AND USING THE SERVICES IN ANY MANNER, YOU ARE “ACCEPTING” AND AGREEING TO BE BOUND BY THESE TERMS OF SERVICE TO THE EXCLUSION OF ALL OTHER TERMS. IF YOU DO NOT UNCONDITIONALLY ACCEPT THESE TERMS IN THEIR ENTIRETY, YOU SHALL NOT (AND SHALL HAVE NO RIGHT TO) ACCESS OR USE THE SERVICES. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. THESE TERMS SHOULD BE READ IN CONJUNCTION WITH Content Fresh’s PRIVACY POLICY.

 

Wherever used in these Terms of Service, “you“, “your“, “Customer“, or similar terms means the person or legal entity accessing or using the Services. If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms of Service.

 

We reserve the right, at any time, to update and change any or all of these Terms of Service, in our sole discretion, including but not limited to the fees and charges associated with the use of the Services. If we do so, we will post the modified Terms of Service on ContentFresh.com (the “Site“), though we will notify you of any changes that, in our sole discretion, materially impact these Terms of Service. Continued use of the Services after any such changes have been made shall constitute your consent to such changes. If a change has a material adverse impact on you, and you have contracted and prepaid for a certain term, you may notify us within 30 days after being informed of that change that you do not agree with the change. If you do so, we will delay applying the change to you until your prepaid term ends, or, at our sole and absolute discretion, allow you to cancel your account, and we will refund any prepaid amount pro rata to you. If you use our Services after your prepaid term ends, all changes will apply to you. You are responsible for regularly reviewing the most current version of these Terms of Service, which are currently available at: http://contentfresh/terms. When we change these Terms of Service, we will modify the “Last Modified” date above.

 

1. Definitions

“Authorization Form” means a document issued by Content Fresh and executed or otherwise agreed upon by you, or your authorized representative that specifies, among other things, a description of the Services, the fees, the number of Seats purchased, the Term, and any other details specifically related to the Services.

“Authorized Users” means individuals who are directly accessing the Services via an online sign-up process, or individual users authorized by you to use the Services and who you have supplied user identifications and passwords to. Authorized Users may include your employees, consultants, contractors, agents, or your other designees, but shall not include any employee or agent of any competitor of Content Fresh or our developers Cloud Campaign.

“Customer Content” means all information and data (including text, images, photos, videos, audio, and documents) or any other content in any media and format provided or made available to Content Fresh by or on your behalf in relation to the use of the Services.

“Fair Use Policy” means the limits placed on usage as described in Section 2.6.

“Mentions” means the information, including links, posts, and excerpts, that has been made publicly available and obtained by Content Fresh on your behalf from the Internet, and data derived therefrom, including reports, summaries, graphs, and charts.

“Seat” means a single subscription associated with a single login to Services, assigned to one Authorized User.

“Services” means services provided to you by Content Fresh based on the plan you have purchased either through an online transaction or via an Authorization Form, but excluding Third-Party Services.

“Supported Platform(s)” means the social networking site(s) currently supported by the Services, including Twitter, Facebook, LinkedIn, Instagram, YouTube, Google My Business, Pinterest, and other social networking sites as described via the Site.

“Taxes” means all taxes, assessments, charges, fees, and levies that may be levied or based upon the sale or license of goods and/or services, as the case may be, including all sales, use, goods and services, value added, and excise taxes, custom duties, and assessments together with any instalments with respect thereto, and any interest, fines, and penalties with respect thereto, imposed by any governmental authority (including federal, state, provincial, municipal, and foreign governmental authorities).

“Third-Party Services” means products, services, applications, or websites made available by third parties through the Services (i.e., companies or people who are not Content Fresh or our developers Cloud Campaign).

 

2. Content Fresh (and our developer Cloud Campaign) Services

2.1 Services. During the Term, subject to the terms and conditions of this Agreement, and solely for your personal or internal business purposes, Content Fresh grants you and your Authorized Users a right to access and use our Services for the number of Seats purchased, and support, if applicable, in accordance with the plan you selected.

2.2 Updates and Functionalities. You acknowledge that from time to time Content Fresh or our developers Cloud Campaign may apply updates to the Services and that such updates may result in changes in the appearance and/or functionality of the Services (including the addition, modification, or removal of functionality, features, or content). Excluding the addition of wholly new products, Content Fresh or our developers Cloud Campaign shall provide, implement, configure, install, support, and maintain at its own cost any and all updates, upgrades, enhancements, improvements, releases, corrections, bug fixes, patches, and modifications to the Services (collectively, the “Updates“). You acknowledge that the Services interoperate with several Supported Platforms, and that the Services provided are highly dependent on the availability of such Supported Platforms. If at any time any Supported Platforms cease to make their programs available to Content Fresh or our developers Cloud Campaign on reasonable terms (each an “API Change“), Content Fresh or our developers Cloud Campaign may cease to provide such features to you without entitling you to refund, credit, or other compensation.

2.3 Acceptable Use. You shall (i) be responsible for your and your Authorized Users’ compliance with these Terms of Service, including the Fair Use Policy; (ii) be solely responsible for the accuracy, quality, integrity, and legality of Customer Content and of the means by which you acquired or generated Customer Content; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, including keeping your password and user name confidential and not permitting any third party to access or use your user name, password, or account for the Services; (iv) be solely responsible and liable for all activity conducted through your account in connection with the Services; (v) promptly notify Content Fresh if you become aware of or reasonably suspects any security breach, including any loss, theft, or unauthorized disclosure or use of your (or any Authorized User’s) user name, password, or account; (vi) use the Services only in accordance with applicable laws and government regulations; (vii) comply in all respects with all applicable terms of the Third-Party Services that you access or subscribe to in connection with the Services, including the applicable terms for Supported Platforms, such as the YouTube Terms of Service published at www.youtube.com/t/terms. Without limiting the foregoing, you represent and warrant that (i) you are not a public sector entity who will be using the Services to access or use content from Twitter for surveillance purposes, (ii) you are not a public sector entity whose primary function includes conducting surveillance/gathering intelligence; and (iii) you will not be using the Services to access or use content from Twitter for any unlawful, discriminatory purposes and/or profiling based on sensitive categories of information prohibited by law (see Section VII.A. User Protection of the Twitter Developer Agreement published at https://developer.twitter.com/en/developer-terms/agreement). You must not (a) make the Services available to anyone other than to your Authorized Users; (b) allow more than one individual Authorized User to use a Seat; (c) sell, trade, or otherwise transfer your Seats to another party; (d) use the Services to store or transmit any content, including Customer Content, that may be infringing, defamatory, threatening, harmful, or otherwise tortious or unlawful, including any content that may violate intellectual property, privacy, rights of publicity, or other laws, or send spam or other unsolicited messages in violation of applicable law; (e) upload to, or transmit from, the Services any data, file, software, or link that contains or redirects to a virus, Trojan horse, worm, or other harmful component; (f) attempt to reverse engineer, de-compile, hack, disable, interfere with, disassemble, copy, or disrupt the integrity or the performance of the Services, any third-party use of the Services, or any third-party data contained therein (except to the extent such restrictions are prohibited by applicable law); (g) access the Services in order to build a competitive product or service or copy any ideas, features, functions, or graphics of the Services; (h) attempt to gain unauthorized access to the Services or its related systems or networks; or (i) authorize, permit, or encourage any third party to do any of the above.

2.4 Mentions. You understand that by using the Services you may be exposed to third-party content, information, and Mentions that might be unlawful, offensive, harmful, inaccurate or otherwise inappropriate. Content Fresh or our developers Cloud Campaign do not own, control, or review Mentions, and unless Customer creates the content of Mentions, Mentions shall not be considered “Customer Content” under any circumstances. Mentions may be indecent, offensive, inaccurate, unlawful, or otherwise objectionable. Content Fresh or our developers Cloud Campaign have no obligation to preview, verify, flag, modify, filter, or remove any Mentions, even if requested to do so, although Content Fresh or our developers Cloud Campaign may do so in its sole discretion. Your use of Mentions is at your sole risk, and Content Fresh or our developers Cloud Campaign shall not be liable to you or any third party in relation to Mentions.

2.5 Fair Use Policy. Content Fresh or our developers Cloud Campaign may suspend your access to the Services for abusive practices that degrade the performance of the Services for you and/or other customers of Content Fresh or our developers Cloud Campaign.

2.6 Third-Party Products and Services. You acknowledge that the Services may enable or assist you to access, interact with, and/or purchase Third-Party Services from Supported Platforms and other third parties. When you access the Third-Party Services, you will do so at your own risk. These Third-Party Services may also allow you to store your Customer Content with the provider or operator of the Third-Party Services. Any use of Third-Party Services is governed solely by the terms and conditions of such Third-Party Services (and you shall comply with all such terms and conditions), and any contract entered into, or any transaction completed via any Third-Party Services, is between you and the relevant third party, and not Content Fresh or our developers Cloud Campaign. Content Fresh or our developers Cloud Campaign make no representation and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such Third-Party Services or any transactions completed and any contract entered into by you with any such third party. Namely, while using the YouTube API client, you are agreeing to be bound by the YouTube Terms of Service (https://www.youtube.com/t/terms). You can revoke Content Fresh’s access to your YouTube and Google accounts at any time by visiting Google’s Security Settings (https://security.google.com/settings/security/permissions).

2.7 Non-Exclusivity. You acknowledge that the rights granted to you under this Agreement are non-exclusive and that nothing in this Agreement will be interpreted or construed to prohibit or in any way restrict Content Fresh or our developers Cloud Campaign’s right to license, sell, or otherwise make available the Services to any third party or perform any services for any third party.

2.8 Beta Testing. From time to time, we may offer you the opportunity to install, use and test (the “Beta Testing“) certain of our Services prior to their commercial release (the “Beta Services“).

Beta Services are intended for evaluation purposes and not for production use and are subject to following additional terms:

(i) we grant you a limited right to use the Beta Services for Beta Testing purposes during the applicable testing period;

(ii) you agree to provide suggestions, comments, or other feedback with respect to the Beta Services as reasonably requested, including ideas for modifications and enhancements (the “Beta Feedback“). You hereby assign to us all right, title and interest in and to the Beta Feedback. All Beta Services and your Beta Feedback are Content Fresh and our developers Cloud Campaign’s Confidential Information, and Content Fresh and our developers Cloud Campaign may use your Beta Feedback in advertising and promotional materials with your prior consent (not to be unreasonably withheld);

(iii) we reserve the right to modify the Beta Services or terminate your participation in the Beta Testing for any reason, without liability to you. We will use commercially reasonable efforts to provide you with reasonable advance notice of such termination;

(iv) you acknowledge that the Beta Services are not at the level of performance or compatibility of a final, generally available product offering, and may be substantially modified prior to commercial availability, or withdrawn. We are under no obligation to provide technical support with regards to the Beta Services, and we provide no assurance that any specific errors or performance issues in the Beta Services will be corrected; and

(v) the Beta Services are provided on an “as is” and “as available” basis without any warranties or conditions of any kind, whether express, implied, statutory or otherwise. Use of the Beta Services is at your sole risk. In no event will we be liable to you for any damage whatsoever arising out of the use of or inability to use the Beta Services.

3. Intellectual Property

3.1 Content Fresh and our developers Cloud Campaign Services. As between you and Content Fresh and our developers Cloud Campaign, Content Fresh retains all right, title, and interest in and to the Services. Nothing herein shall be construed to restrict, impair, encumber, alter, deprive, or adversely affect the Services or any of Content Fresh and our developers Cloud Campaign’s rights or interests therein or any other Content Fresh and our developers intellectual property, brands, information, content, processes, methodologies, products, goods, services, materials, or rights, tangible or intangible. All rights, title, and interest in and to the Services not expressly granted in this Agreement are reserved by Content Fresh. You may from time to time provide suggestions, comments or other feedback to Content Fresh with respect to the Services (“Feedback“). Feedback, even if designated as confidential by you, shall not create any confidentiality obligation for Content Fresh notwithstanding anything else. You shall, and hereby do, grant to Content Fresh and our developers Cloud Campaign a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose.

3.2 Customer Content. You grant Content Fresh a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 9.1) license, without a right of sublicense, to access, use, reproduce, electronically distribute, transmit, perform, format, display, store, archive, and index the Customer Content for the purpose of supporting your use of the Services and providing Services to you. Content Fresh and our developers Cloud Campaign may also use Customer Content for the purpose of supporting and developing the Services, provided that when doing so, Content Fresh and our developers Cloud Campaign shall only use Customer Content in an anonymized and aggregated way. Subject only to the limited license expressly granted herein, you and your Authorized Users shall retain all right, title and interest in and to the Customer Content and all intellectual property rights therein. Nothing in this Agreement will confer on Content Fresh and our developers Cloud Campaign any right of ownership or interest in the Customer Content or the intellectual property rights therein.

3.3 Responsibility for Customer Content and Mentions. You are solely responsible for the Customer Content that you or Authorized Users upload, publish, display, link to, or otherwise make available via the Services, and you agree that Content Fresh and our developers Cloud Campaign are only acting as a passive conduit for the online distribution and publication of the Customer Content and the online display of Queries and Mentions. Content Fresh and our developers Cloud Campaign will not review, share, distribute, or reference any Customer Content or Mentions except as provided herein, as provided in Content Fresh’s privacy policy, or as may be required by law. Notwithstanding the foregoing, Content Fresh retains the authority to remove any Customer Content uploaded that it deems in violation of this Agreement, at its sole discretion.

4. Content Fresh Products and Fees

4.1 Purchases By Authorization Form. If an Authorization Form is issued for the purchase of Services, you agree to pay all fees as and when described per the Authorization Form(s). Content Fresh shall invoice you for the fees in the currency set forth on the applicable Authorization Form. Unless otherwise stated on the Authorization Form, all invoices shall be payable within 30 days of the invoice date. Any disputed amounts shall not affect payment of non-disputed amounts. You shall make payments to the entity and address set forth in the invoice.

4.2 Online Paid Services. For paid Services purchased online (“Online Services“), you must provide Content Fresh with a valid credit card or other payment method (e.g., PayPal account) to pay for such services. Some Services may be available as a one-time purchase, and others can be purchased as a monthly or yearly subscription. You agree that Content Fresh has permission to retain and/or share with financial institutions and payment processing firms (including any institutions or firms Content Fresh retains in the future) your submitted payment information in order to process your purchase. Depending on where you transact with us, the type of payment method used and where your payment method was issued, your transaction with us may be subject to foreign exchange fees or differences in prices, including because of exchange rates. Content Fresh does not support all payment methods, currencies, or locations for payment. If the payment method you use with us, such as a credit card, reaches its expiration date and you do not edit your payment method information or cancel or downgrade your account to a charge-free account, you authorize Content Fresh to continue billing your credit card and/or PayPal account and you remain responsible for any uncollected amounts. All applicable taxes are calculated based on the billing information you provide us at the time of purchase.

4.3 Free Trial Period. If you sign up for a free trial period for a Service that is subject to charges (the “Free Trial“), we may require you to provide us with a valid credit card or other valid payment method. We may start charging you automatically on the first day after the Free Trial is over, unless you cancel or downgrade to a charge-free Service and uninstall any Apps or other items, as required for cancellation, before the end of the Free Trial period. The Free Trial is only available to first time users of a paid Online Service.

Customers are entitled to one free trial each, unless otherwise authorized by Content Fresh. In the event that one customer initiates multiple trials within the system, that customer will immediately waive their right to a free trial period and the company may bill them at any time.

4.4 Subscription Services; Auto-renewal and Cancellation. If you are purchasing Online Services on a subscription basis, you may have the option to purchase a monthly or a yearly subscription, which will automatically renew at the end of its applicable term. Subscriptions are billed in advance on a monthly or yearly basis (as per the option chosen when you purchased such Online Services) and are non-refundable for the subscription period they are purchased for. You agree that Content Fresh may process your credit card or other valid payment method on each monthly, annual, or other renewal term (based on the applicable billing cycle), on the calendar day corresponding to the first day you subscribed to Online Services. If your paid subscription to Online Services began on a day not contained in a subsequent month (e.g., your service began on January 30 and there is no February 30), we will process your payment on the last day of such month. You may elect to cancel or downgrade your Online Services at any time. If you subscribed to a monthly plan, the downgrade will only be effective at the end of the then-current monthly billing period, and no credits or refunds will be issued to you for any prepaid fees. If you subscribed to a yearly plan, the downgrade will only be effective at the end of the then-current annual billing period and no credits or refunds will be issued to you for prepaid fees. Online Services purchased for a one-time fee (such as white label) are not refundable.

4.5 Late Payment. If any amounts due hereunder are not received by Content Fresh by the due date, then at Content Fresh’s discretion, such charges may accrue late interest at the rate of 12% per year or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. In addition, upon 10 days’ written notice, Content Fresh may suspend your access to the Services if Content Fresh does not receive the amounts invoiced hereunder at the expiration of such period.

4.6 Taxes and Withholdings. You are responsible for paying all Taxes associated with your purchase of Services. If Content Fresh has the legal obligation to pay or collect Taxes for which you are responsible under this section, the appropriate amount shall be invoiced to and paid by you, unless you provide Content Fresh with a valid tax exemption certificate authorized by the appropriate taxing authority. Any and all payments by or on account of the compensation payable under this Agreement shall be made free and clear of and without deduction or withholding for any Taxes. If you are required to deduct or withhold any Taxes from such payments, then the sum payable shall be increased as necessary so that, after making all required deductions or withholdings, Content Fresh receives an amount equal to the sum it would have received had no such deduction or withholding been made.

5. Term and Termination

5.1 Term of the Agreement (“Term“). For Online Services, the term of this Agreement shall commence on the day you access the Services for the first time and shall continue until your subscription ends, or your account is cancelled and you cease using our Services. If you purchase Services via an Authorization Form, the term of this Agreement shall commence on the day you sign the Authorization Form and shall continue until your subscription ends, or your account is cancelled and you cease using our Services.

5.2 Termination. If you violate the letter or spirit of this Agreement, abuse the Services, or otherwise create risk or possible legal exposure to Content Fresh, we can terminate or suspend your access to the Services at our sole discretion. We will use commercially reasonable efforts to notify you by email or at the next time you attempt to access your account. You may also cancel or disable Services at any time.

5.3 Effects of Termination. Upon termination of this Agreement for any reason, (i) you will immediately cease all use of the Services; (ii) you will have no further access to your accounts provided by Content Fresh; and (iii) you will pay Content Fresh all unpaid amounts owing to Content Fresh.

5.4 Survival. Any provision of this Agreement which, either by its terms or to give effect to its meaning, must survive, and such other provisions which expressly, or by their nature, are intended to survive termination shall survive the expiration or termination of this Agreement.

7.1 Your Indemnification. You shall defend, indemnify, and hold harmless Content Fresh and its developers Cloud Campaign, their affiliates, directors, officers, employees, and agents from and against all claims, losses, damages, penalties, liability, and costs, including reasonable attorneys’ fees, of any kind or nature which are in connection with or arising out of a claim (a) alleging that the Customer Content or your use of the Services infringes or violates the intellectual property rights, privacy rights, or other rights of a third party or violates applicable law; (b) relating to, or arising from, Customer Content, or your breach of Section 2.3 or Section 2.6; or (c) relating to, or arising from, Third-Party Services.

8. Limitation of Liability

SOME COUNTRIES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL Content Fresh and its developers Cloud Campaign’s AGGREGATE LIABILITY FOR ALL CLAIMS OF ANY KIND, INCLUDING ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BY STATUTE, CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE GREATER OF (A) THE FEEDS PAID BY YOU FOR THE SERVICES HEREUNDER DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE AND (B) US$500. Content Fresh and its developers Cloud Campaign DO NOT OFFER ANY WARRANTY OR REMEDIES FOR THE INTERRUPTION OR CESSATION OF ACCESS OR TRANSMISSION TO OR FROM THE SERVICES.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL Content Fresh and its developers Cloud Campaign, ITS DIRECTORS, EMPLOYEES, AGENTS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL USE, OR DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SERVICES OR ANY OTHER ASPECT OF THIS AGREEMENT. UNDER NO CIRCUMSTANCES WILL Content Fresh or its developers Cloud Campaign BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.

THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF Content Fresh and its developers Cloud Campaign WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS. NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR RESTRICT OR SHALL BE CONSTRUED AS EXCLUDING OR RESTRICTING THE LIABILITY OF Content Fresh and its developers Cloud Campaign FOR (I) DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF Content Fresh and its developers Cloud Campaign, ITS EMPLOYEES, OR ITS AGENTS; (II) WILLFUL MISCONDUCT OF Content Fresh and its developers Cloud Campaign; OR (III) ANY LIABILITY WHICH CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.

9. General

9.1 Assignment. You may not assign or otherwise transfer any of your rights or obligations hereunder, whether by merger, sale of assets, change of control, operation of law or otherwise, without the prior written consent of Content Fresh and its developers Cloud Campaign (not to be unreasonably withheld), and any attempted assignment or transfer without such consent will be void. Content Fresh and its developers Cloud Campaign may freely assign or delegate all rights and obligations under this Agreement, fully or partially without notice to you. Content Fresh and its developers Cloud Campaign may also substitute, by way of unilateral novation, effective upon notice to you, Content Fresh and its developers Cloud Campaign for any third party that assumes our rights and obligations under this Agreement.

9.2 Export Compliance and Use Restrictions. You shall not use or access the Services if you are located in any jurisdiction in which the provision of the Services is prohibited under Canadian, U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction“) and you shall not provide access to the Services to any government, entity or individual located in any Prohibited Jurisdiction. You represent, warrant and covenant that (a) you are not named on any Canadian or U.S. government list of persons or entities prohibited from transaction with any Canadian or U.S. person; (b) you are not a national of, or a company registered in, any Prohibited Jurisdiction; (c) you shall not allow Authorized Users to access or use the Services in violation of any Canadian, U.S. or other applicable export embargoes, prohibitions or restrictions; and (d) you shall comply with all applicable laws regarding the transmission of data exported from the country in which you (or your Authorized Users) are located to Canada and the United States.

9.3 Severability. Each provision of this Agreement is severable. If any provision of this Agreement is or becomes illegal, invalid, or unenforceable in any jurisdiction, the illegality, invalidity, or unenforceability of that provision will not affect the legality, validity, or enforceability of the remaining provisions of this Agreement or of that provision in any other jurisdiction.

9.4 Notices. For purposes of service messages and notices about the Services, we may place a banner notice across our pages to alert you to certain changes such as modifications to this Agreement. Alternatively, notice may consist of an email from us to an email address associated with your account, even if we have other contact information. You also agree that we may communicate with you through your Content Fresh account or through other means including email, mobile number, telephone, or delivery services including the postal service about your Content Fresh account or services associated with us. You acknowledge and agree that we shall have no liability associated with or arising from your failure to maintain accurate contact or other information, including, but not limited to, your failure to receive critical information about the Services. You may provide legal notice to Content Fresh via email with a duplicate copy sent via registered mail to Content Fresh LLC., PO Box 2292, Daphne, AL 36526; Attention: Legal Affairs. The email address provided may be updated as part of any update to these Terms of Service.

9.5 Waivers. No waiver of any provision of this Agreement is binding unless it is in writing and signed by all parties to this Agreement, except that any provision which does not give rights or benefits to particular parties may be waived in writing, signed only by those parties who have rights under, or hold the benefit of, the provision being waived if those parties promptly send a copy of the executed waiver to all other parties. No failure to exercise, and no delay in exercising, any right or remedy under this Agreement will be deemed to be a waiver of that right or remedy. No waiver of any breach of any provision of this Agreement will be deemed to be a waiver of any subsequent breach of that provision or of any similar provision.

9.6 Nature of Relationship. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect.

9.7 Force Majeure. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes, lock-outs, or labour disruptions; and any laws, orders, rules, regulations, acts, or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts.

9.8 Governing Law. This Agreement and your relationship with Content Fresh shall be governed exclusively by, and will be enforced, construed, and interpreted exclusively in accordance with, the laws applicable in the province of British Columbia, Canada and shall be considered to have been made and accepted in British Columbia, Canada, without regard to its conflict of law provisions. All disputes under this Agreement will be resolved by the courts of British Columbia in Vancouver. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees.

9.9 Entire Agreement. The terms of this Agreement, together with any service-specific terms, any applicable Authorization Form, all exhibits, and Content Fresh’s privacy policy, constitute the entire agreement between the parties with respect to the use of the Services and supersede any prior or inconsistent agreements, negotiations, representations, and promises, written or oral, with respect to the subject matter and is binding upon the parties and their permitted successors and assigns. In the event of any conflict between this Agreement and the terms of an Authorization Form, the provisions of the Authorization Form shall prevail. The terms of this Agreement will apply to all orders you submit to Content Fresh and shall supersede any additional terms, which may be incorporated in a purchase order form, or any other form you generate. Any such terms shall be null and void.

SERVICE-SPECIFIC TERMS

10. Content Fresh Cloud for Contests

If you use or access Content Fresh Cloud for Contests, the following additional terms apply to your access to and use of such Services:

10.1 Additional Definitions.

“Campaigns” means campaigns created by you or your Authorized Users, including contests, sweepstakes, galleries, and other market data gathering activities on Supported Platforms, via the Content Fresh Cloud Platform.

“Campaign Page” means a webpage for a particular Campaign that may display or publish Customer Content, Mentions, and/or Submitted Content.

“Campaign Participant” means a person who participates in a Campaign.

“Content Fresh Cloud for Contests” or ” Content Fresh Cloud Platform” means Content Fresh’s proprietary software, content, text, images, media, and other materials delivered through Content Fresh Cloud’s web platform campaigns. Social.contentfresh.com and cldportal.com (including successor domain names and sites) and mobile applications that enable you and your Authorized Users to create and manage Campaigns, including any modifications or Updates.

“Submitted Content” means all information (including personal information) and data or any other content in any media and format provided or made available to you by Campaign Participants.

10.2 Campaigns. You shall: (i) be responsible for the Campaigns and content published and distributed on the Campaign Pages; (ii) ensure that each Campaign complies with all applicable laws, rules, and regulations; (iii) establish, provide, and administer official rules for each Campaign that accomplish the following: (a) informs each Campaign Participant that you may be collecting personally-identifiable information about them in connection with the operation of the Campaign, your use of the foregoing information will be subject to your privacy policy, and Content Fresh’s use of the foregoing information will be subject to Content Fresh’s privacy policy; (b) obtains each Campaign Participant’s consent as required by applicable law to your and Content Fresh’s use of such information for purposes of operating the Campaign and for the statistical purposes set forth in these Terms of Service or the applicable privacy policies; (c) notifies each Campaign Participant that the Campaign is in no way sponsored, endorsed, or administered by, or associated with, Content Fresh and that any references to any of your products, services, or offerings by trade name, trade-mark, manufacturer, supplier, or otherwise do not constitute or imply endorsement, sponsorship, or recommendation thereof by Content Fresh; and (d) states that each Campaign Participant unconditionally releases and holds harmless Content Fresh from any and all liability associated with the Campaign; (iv) require each Campaign Participant to agree to the official rules for the applicable Campaign; and (v) not request the submission of personal medical information, social security information, payment card details, or financial information with respect to a Campaign or on a Campaign Page.

You acknowledge and agree that: (i) the Services do not assist with compliance of the Campaigns with any laws, rules, or regulations; (ii) Content Fresh is not responsible or liable for the failure of any Campaign Participant (or any other third party) to comply with the rules, terms, conditions, policies, or applicable laws, rules, or regulations governing any Campaign; (iii) Content Fresh is not liable for the content or customized display of any Campaign or Campaign Page and disclaim any warranty as to the completeness of the Mentions and Submitted Content obtained on your behalf and displayed on any Campaign Page; (iv) you may not refer to Content Fresh nor use Content Fresh’s name, trade-marks, or trade names in connection with a Campaign or in the rules or materials relating to a Campaign, except to refer to Content Fresh’s privacy policy and copyright policy where required in accordance with the paragraph above; (v) if Campaign Participants provide you with Submitted Content that is personal information, Content Fresh is not responsible or liable for your use or distribution of such information; and (vi) Content Fresh is not responsible for monitoring your compliance with the obligations in this Section 10.2. If you are in breach of such obligations with respect to a Campaign, Content Fresh may immediately suspend such Campaign and its Campaign Page and your access to the Services.

10.3 Submitted Content. You shall be solely responsible for the means by which you acquire or generate Submitted Content. You understand that, by using the Services, you may be exposed to Submitted Content that might be unlawful, offensive, harmful, inaccurate, or otherwise inappropriate. Unless you create the content of the Submitted Content, Submitted Content shall not be considered “Customer Content” under any circumstances. Content Fresh has no obligation to preview, verify, flag, modify, filter, or remove any Submitted Content, even if requested to do so, although Content Fresh may do so in its sole discretion. Your use of Submitted Content is at your sole risk, and Content Fresh shall not be liable to you or any third party, including any Campaign Participant, in relation to Submitted Content.

To the extent Submitted Content is accepted for a Campaign, you shall (i) require each Campaign Participant to be responsible for its own Submitted Content and the consequences of posting or publishing such Submitted Content; and (ii) require each Campaign Participant to affirm, represent, and warrant that such Campaign Participant (a) owns or has the necessary licenses, rights, consents, and permissions to use and authorize you and Content Fresh to use all intellectual property rights in and to its Submitted Content and (b) has the written consent, release, and/or permission of each and every identifiable individual person in its Submitted Content to use the name and likeness of every such person, in order to enable inclusion and use of the Submitted Content in the manner contemplated by the Campaign and applicable official rules and on the Campaign Page.

10.4 Responsibility for Campaigns and Submitted Content. You agree that the Services are only a passive conduit for the online display of Campaigns and Submitted Content. Content Fresh will not review, share, distribute, or reference any Campaigns or Submitted Content, except as provided in this Agreement, as provided in Content Freshs privacy policy, or as may be required by law. Notwithstanding the foregoing, Content Fresh retains the authority to remove any Submitted Content uploaded that it deems in violation of this Agreement, in its sole discretion.

10.5 Your Additional Indemnification. You shall defend, indemnify, and hold harmless Content Fresh, its affiliates, directors, officers, employees, and agents from and against all claims, losses, damages, penalties, liability, and costs, including reasonable attorneys’ fees, of any kind or nature which are in connection with or arising out of a claim (a) alleging that any Campaign or Submitted Content infringes or violates the intellectual property rights, privacy rights, or other rights of a third party or violates applicable law; or (b) relating to, or arising from, (i) any Campaign or Submitted Content, or entries to or from a Campaign or a Campaign Page or (ii) your breach of your obligations, representations, or warranties in Section 10.2 or 10.3 above.