ACE Terms of Service

ACE HARDWARE SOCIAL MEDIA MANAGEMENT PROGRAM TERMS OF USE


 
Welcome to the Ace Hardware Social Media Management Program powered by SOCi, Inc. (“SOCi”, “we”, “us”, or “our”). By agreeing to these Terms of Use (“Terms of Service”), you (“You”, “Your”, “Retailer”) will gain access to the social media and reputation management software platform (the “Platform”) currently located at https://www.meetsoci.com (the “Site”).

 

Access to the Platform is made possible pursuant to an agreement between Ace Hardware Corporation (“Ace” or “Corporate”) and SOCi (the “Corporate Agreement”), a corresponding agreement between You and Corporate (“Participation Agreement”), and Your acceptance of these Terms of Service. SOCi’s obligations with respect to providing You access to the Platform are also subject to the Corporate Agreement. The Platform may be made available at the Site, or may be integrated elsewhere into websites or applications made available to you by Ace through an Integration API provided by SOCi (“Integrated Platform Services”). Through the Platform, you will gain access to the hosted software subscription services described in Section 2 hereof (the “Platform Services”), and, if so elected, we will deliver the associated content, social media management and reputation management services further described at https://www.meetsoci.com/ace-full-service-sign-up/” (the “Professional Services” and together with the Platform Services, the “Services”).

 

Ace and SOCi expressly reserve the right to change these Terms of Service from time to time upon reasonable
notice to you (including without limitation via electronic notification or notification on the Site). You agree that it is your responsibility to review these Terms of Service from time to time and to familiarize yourself with any modifications. Your continued use of this Site or any Services after notification of such modifications will constitute acknowledgement of the modifications and agreement to abide and be bound by the revised Terms of Service. You can review the most current version of the Terms of Service at any time at: https://www.meetsoci.com/ace-terms-of-service. For questions about the Terms of Service please email contact@MeetSOCi.com.

 

Violation of any of the Terms of Service may result in the suspension or termination of your access to the Services.

 

1. CERTAIN DEFINITIONS
 
1.1 “Retailer Content” means content, data, text, messages and images submitted by you or any User to the Services; including any Customer Content (as defined in the Corporate Agreement) submitted or curated by Ace, as applicable.

 

1.2 “External Content” means content, including links, posts, and excerpts that have been made publicly available and obtained by SOCi on Retailer’s behalf from the Internet, including through RSS Feeds and Facebook, and data derived therefrom, including reports, summaries, graphs, and charts.

 

1.3 “Integration API” means, if ordered, an API provided by SOCi to enable integration of certain functionality or data offered by the Platform Service into web portals or dashboards (“Web Media”) owned and operated by Retailer.

 

1.4 “Library Content” means content curated by SOCi, including images, made available to Retailer through the Services.

 

1.5 “Platform Content” means External Content and Library Content that SOCi makes available to Retailer for use through the Services.

 

1.6 “Software” has the meaning set forth in Section 4.2.

 

1.7 “User” means an individual who is authorized by Retailer (“Retail User”) (collectively Users) to use the Service and for whom the Service has been provisioned. Users may only be employees and consultants of Retailer acting on behalf of Retailer.

 

2. PLATFORM AND PROFESSIONAL SERVICES
 
2.1 The Platform Services shall allow Retailer to manage Retailer’s business pages on Facebook, Twitter, Google+, LinkedIn, and Instagram, as well as it’s reputation and reviews on Yelp, Facebook and Google My Business. The Platform Services are subject at all times to the availability and terms of use of the social media and reputation networks.

 

2.2 Subject to the terms and conditions of these Terms of Service, Retailer may subscribe to the Services from time to time, provided that Retailer will agree to these Terms of Service. Only Retailer and its employees and consultants (acting on behalf of Retailer/Retailer as applicable) may use the Services. Retailer will be responsible for any breach of the terms of these Terms of Service by it and its Users. Retailer may not, and may not allow or assist any other entity to, sublicense, assign, transfer, distribute, rent or sell use of or access to the Services, whether as a service bureau or otherwise, or remove, alter or obscure any product identification, copyright or other notices. Retailer shall not be entitled to access or receive any of the source or object code related to the Platform or Software.

 

2.3 The Services are subject to modification from time to time at SOCi’s sole discretion.

 

2.4 The Platform will be hosted on a server under the control and direction of SOCi, and Retailer’s access to the Platform is limited to use over the Internet. Notwithstanding the foregoing, SOCi reserves the right to suspend Retailer’s access to the Platform: (i) for scheduled or emergency maintenance of reasonable length in accordance with industry practices, or (ii) in the event Retailer is in breach of these Terms of Service, and fails to cure such breach within thirty (30) days of receipt of written notice thereof.

 

2.5 Unless otherwise expressly approved in writing by SOCi, Retailer may not alter, remove or replace any logos, trademarks, branding or legal notices of the Platform Services.

 

2.6 Retailer may subscribe for Professional Services on behalf of a Retailer by delivering a Service Order Form (“Service Order Form”) to SOCi outlining the specific Professional Services that will be provided by SOCi. All Service Order Forms shall be governed by the term of these Terms of Service and hereby are incorporated herein by reference. In the event of any conflict between these Terms of Service and the applicable Service Order Form, the terms of these Terms of Service shall govern.

 

3. RESTRICTIONS AND RESPONSIBILITIES
 
3.1 Retailer will (a) be responsible for Retailer and its Users’ compliance with these Terms of Service and any additional terms and conditions agreed by the parties, (b) be responsible for the quality and legality of all Retailer Content, (c) prevent and be responsible for unauthorized access to or use of Platform Services through any User account, and will notify SOCi promptly of any such unauthorized access or use, and (d) use Services only in accordance with these Terms of Service and applicable laws. Retailer acknowledges and agrees that certain External Content may be subject to third party terms and conditions provided directly or found at the respective web links (for RSS feeds, for example), and Retailer (and its Users) shall comply with all such terms for External Content used by Retailer.

 

3.2 Retailer will not, and will not permit any third party to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Platform (“Software”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); (ii) modify, translate, or create derivative works based on the Platform or Software; (iii) use the Platform or Software for time sharing or service bureau purposes; or (iv) use the Platform or Software or underlying intellectual property other than in accordance with these Terms of Service and in compliance with all applicable laws and regulations.

 

3.3 Retailer will cooperate with SOCi in connection with the performance of these Terms of Service by making available such personnel and information as may be reasonably required, and taking such other actions as SOCi may reasonably request. Retailer will also cooperate with SOCi in establishing a password or other procedures for verifying that only designated employees or agents of Retailer have access to any administrative functions of the Platform.

 

3.4 Retailer shall be responsible for maintaining the security of Retailer’s account, passwords (including but not limited to Retailer User passwords) and files, and for all uses of Retailer’s account with or without Retailer’s knowledge or consent (other than any use resulting from the negligence or willful misconduct of SOCi or Retailer’s Users).

 

4. CONFIDENTIALITY
 
4.1 Retailer Content shall be subject to SOCi’s privacy policy, available at https://www.meetsoci.com/privacy-notice/.

 

4.2 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose non-public information relating to the Disclosing Party’s technology or business that such party considers to be proprietary and/or confidential (hereinafter referred to as “Proprietary Information” of the Disclosing Party).

 

4.3 The Receiving Party agrees: (i) not to divulge to any third person (except to Corporate) any such Proprietary Information, (ii) to give access to such Proprietary information solely to those employees, agents, contractors and advisors (including financial and legal advisors) with a need to have access thereto for purposes of these Terms of Service and who are bound by confidentiality obligations at least as restrictive as those contained in these Terms of Service, (iii) not to use the Proprietary Information for any purposes other than necessary to perform its obligations under these Terms of Service (unless otherwise authorized in these Terms of Service) and (iv) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, (b) was rightfully in its possession or known by it prior to receipt from the Disclosing Party, (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in these Terms of Service will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. Upon request at the time of termination or expiration of these Terms of Service, or at any time either party shall so request, the other party will deliver promptly to the requesting party, or, at the requesting party’s option, will destroy, all Confidential Information obtained hereunder (and all copies thereof except those copies remaining on a party’s back-up media in the ordinary course of business and subject to destruction under a record retention schedule) belonging to the requesting party that the other party may then possess or have under its control. In any event, SOCi may collect data with respect to and report on the aggregate response rate and other aggregate measures of the Platform’s performance, and such information shall be deemed to be SOCi’s information.

 

4.4 Retailer acknowledges that SOCi does not wish to receive any Proprietary Information from Retailer that is not necessary for SOCi to perform its obligations under these Terms of Service.

 

4.5 The parties acknowledge and agree that the disclosing party of Proprietary Information would suffer immediate and irreparable harm and that monetary damages would be inadequate if the receiving party violated or threatened to violate the sections of this Section 4. In any such instance, the disclosing party shall be entitled to seek injunctive relief in addition to all other remedies.

 

5. INTELLECTUAL PROPERTY RIGHTS
 
5.1 SOCi (and its licensors or suppliers) shall own and retain all rights (including intellectual property rights), title and interest in and to the Platform and Library Content. Retailer grants to SOCi a worldwide, perpetual, irrevocable, royaltyfree license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Retailer or Users relating to the Services.

 

5.2 Retailer shall own and retain all right, title and interest in and to any Retailer Content. The Retailer Content will be treated as Retailer’s Proprietary Information for all purposes under these Terms of Service. Subject to the foregoing, Retailer hereby grants to SOCi a limited, non-exclusive, non-transferable, non-sublicensable, irrevocable license to use and display the Retailer Content for (i) the purpose of performing its obligations on behalf of Retailer hereunder and (ii) for SOCi’s internal business use, including, but not limited to, running analytics and diagnostics on the Platform, and modifying, improving or operating the Platform.

 

5.3 Retailer hereby represents and warrants that it has sufficient rights to allow SOCi to use the Retailer Content as set forth herein. Retailer shall be responsible for the modification, copying and distribution of all Retailer Content and Retailer use of Platform Content; provided, however, that SOCi shall be responsible for procuring all rights necessary for Users to post and distribute the Library Content in the manner contemplated by the Platform Service.

 

5.4 If SOCi receives any notice or claim, or suspects, that any Retailer Content, or activities hereunder with respect to any Platform Content, may infringe or violate rights of a third party or any laws or regulations (a “Claim”), SOCi may remove such Retailer Content and, with respect to a Claim relating to Retailer Content, suspend or terminate Retailer’s access to the Services.

 

5.5 SOCi shall own and retain all right, title and interest in and to any scores, or other analytics data that SOCi develops, produces or otherwise makes available to Retailer relating to Retailer’s social media presence (“Data”); provided that, any Data regarding Retailer’s activities retained after termination shall be de-identified and aggregated. Retailer shall have a right to access Data that SOCi makes available on the Platform at all times during the term of the contract. Data may be deleted upon termination of Retailer’s access hereunder or termination of the Corporate Agreement. Notwithstanding the foregoing, if the Corporate Agreement should terminate but Retailer and SOCi wish to continue Retailer’s subscription to the Platform Service and directly take on responsibilities for the Fees therefore, SOCi may continue to provide the Platform Services and shall not in such a case delete said Retailer’s Data or disable their access to the Platform Services.

 

5.6 Retailer shall have the right to disclose its use of our Services but not the terms or specifics (including pricing terms) of these Terms of Service, unless SOCi approves such disclosure in writing prior to such disclosure. Retailer hereby grants SOCi a limited right and license to list and display its name, trademark, and logo in connection with customer lists and marketing materials in print or on the web, subject to Retailer’s and Corporate’s branding, as applicable, guidelines, and prior written approval of any press releases. All use of Ace names, trademarks and logos by SOCi in connection with the Platform services will be subject to Ace approvals through the Corporate Agreement. Retailer may terminate this right and license upon written notice to us once these Terms of Service has been terminated.

 

6. PAYMENT OF FEES
 
6.1 Under the Corporate Agreement, Ace will pay SOCi the applicable Fees on Your behalf during the term of and for Platform Services covered by the Corporate Agreement. SOCi and Corporate reserve the right to modify this payment arrangement at their discretion. Allocation of such Fees between Corporate and Retailer are between such parties under their Participation Agreement. Upon termination of the Corporate Agreement, and with the consent of SOCi, Retailer may take over payment of the Fees and maintain its access to the Platform.

 

7. TERMINATION
 
7.1 This Agreement terminates automatically upon termination of the Corporate Agreement unless the parties agree (via a written agreement or electronic mail) to continue use of the Platform subject to payment as described in Section 6.1.

 

7.2 Retailer may terminate Platform Services under this Agreement for convenience upon written notice 30 days prior to the end of any annual term; otherwise this agreement will renew for additional one-year annual terms, subject to Sections 7.1 and 7.3.

 

7.3 In the event of any material breach of these Terms of Service, SOCi may terminate Retailer’s access to the Platform upon thirty (30) days prior written notice to Retailer, unless Retailer cures the breach prior to the expiration of such thirty (30) day period.

 

8. WARRANTIES; WARRANTY DISCLAIMER
 
8.1 SOCi represents and warrants that: (i) it has all rights necessary to enter into these Terms of Service and to perform its obligations hereunder, including all rights necessary to permit Retailer and its Users to use the Platform as contemplated herein; (ii) any services provided hereunder will be performed in a professional and workmanlike manner and in accordance with prevailing industry standards for such services; and (iii) the Platform, Software, and any other materials provided or created by SOCi hereunder will not knowingly contain viruses, or disabling devices including, but not limited to, codes, commands or instructions designed to be used to access, alter, delete, damage or disable the network or software of Retailer or its Users.

 

8.2 EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS OF SERVICE, THE PLATFORM, THE PLATFORM SERVICES, PROFESSIONAL SERVICES, PLATFORM CONTENT ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND, AND SOCI HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE.

 

9. LIMITATION OF LIABILITY
 
EXCEPT WITH RESPECT TO CLAUSE (a) OR (b) OF SECTION 11.1 (INDEMNIFICATION) OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE PLATFORM OR ANYTHING PROVIDED IN CONNECTION WITH THESE TERMS OF SERVICE, THE DELAY OR INABILITY TO USE THE PLATFORM OR ANYTHING PROVIDED IN CONNECTION WITH THESE TERMS OF SERVICE OR OTHERWISE ARISING FROM THESE TERMS OF SERVICE, INCLUDING LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF SOCI UNDER THESE TERMS OF SERVICE WILL NOT EXCEED THE FEES PAID TO SOCI BY ACE FOR RETAILER’S ACCESS OF THE PLATFORM SERVICES HEREUNDER DURING THE 6-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THAT FIRST NOTICE IS PROVIDED BY EITHER PARTY REFERENCING THE RELEVANT CLAIM HEREUNDER. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

 

10. INDEMNIFICATION
 
10.1 SOCi shall indemnify, defend and hold harmless Retailer and its and their officers, directors, employees, agents and successors from any and all claims, damages, liabilities, suits, judgments, costs, investigations, administrative or enforcement actions, fines, civil penalties and expenses (including reasonable attorneys’ fees) paid or payable to any unaffiliated third party or incurred in connection with a third-party claim (collectively, “Liabilities“) arising or resulting from (a) any violations of any federal, state or local statutes by SOCi in performing its obligations hereunder, or (b) any claim that the Software infringes any intellectual property rights of any third party. Further, SOCi shall have no obligation with respect to clause (b) of the preceding sentence to the extent any such claim is (i) based upon Retailer’s or their Users’ combination, operation or use of the SOCi Platform with any content, applications or services not supplied by SOCi or (ii) based on the use of the Services in a manner that is not in compliance with these Terms of Service.

 

10.2 Retailer shall indemnify, defend and hold harmless SOCi, and its and their officers, directors, employees, agents and successors from any and all Liabilities arising or resulting from (a) any violations of any federal, state or local statutes by Retailer or its Users in performing its obligations or exercising its rights hereunder, (b) any misuse of the Services by Retailer Users, (c) any claim that the Retailer Content or any modifications by Retailer to Platform Content (and/or use or distribution thereof in accordance with these Terms of Service) infringes the intellectual property rights of any third party, or (d) breach by Retailer of Sections 3.1 or 3.2.

 

10.3 The indemnified party shall provide the indemnifying party with: (i) prompt written notice upon learning of any such potential claim or claims (provided, however, that failure to give prompt notice will not relieve the indemnifying party of any liability hereunder, except to the extent the indemnifying party has suffered actual material prejudice by such failure); (ii) sole control of the defense, investigation and settlement of any such claim, provided that an indemnifying party will not settle any such action without the written consent of the indemnified party (which consent will not be unreasonably withheld or delayed); and (iii) reasonable cooperation (at the indemnifying party’s sole expense) in the defense, investigation and settlement of any such claim.

 

11. FORCE MAJEURE
 
11.1 Except with respect to delays or failures caused by the negligent act or omission of either Party, any delay in or failure of performance by either Party under these Terms of Service will not be considered a breach of these Terms of Service and will be excused to the extent caused by any occurrence beyond the reasonable control of such Party which may include, acts of God, power outages, or failures of the Internet, provided that the Party affected by such event will immediately begin or resume performance as soon as practicable after the event has abated. Excusable delays do not include lockout, shortage of labor, lack of or inability to obtain raw materials, fuel or supplies or any other industrial disturbance. If the act or condition beyond a Party’s reasonable control that prevents that Party from performing any of its obligations under these Terms of Service continues for fifteen (15) days or more, then the other Party may terminate these Terms of Service immediately upon written notice to the non-performing Party.

 

12. MISCELLANEOUS
 
12.1 In these Terms of Service (a) “include”, “includes” and “including” are not limiting and shall be deemed to be followed by the phrase “without limitation” or like expression; (b) the singular shall include the plural and vice versa; (c) references to an agreement, statute or instrument mean such agreement, statute or instrument as from time to time amended, modified or supplemented; (d) the word “will” shall be construed to have the same meaning and effect as the word “shall”; (e) the word “any” shall mean “any and all” unless otherwise indicated by context; and (f) a “day” shall mean a calendar day unless a “business day” is specified.

 

12.2 If any provision of these Terms of Service is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Service will otherwise remain in full force and effect and enforceable.

 

12.3 These Terms of Service is not assignable or transferable by either party without the other party’s prior written consent, which may not be unreasonably withheld, except that either party may assign or transfer these Terms of Service in connection with the sale or transfer of all or substantially all of it business or assets to which these Terms of Service relates, whether by merger, reorganization or otherwise.

 

12.4 The Services, Platform Content, Software, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Retailer will not permit any User to access or use any Platform Service or Platform Content in a U.S.-embargoed country or region (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law or regulation.

 

12.5 The parties agree that these Terms of Service 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 these Terms of Service, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. There are no third party beneficiaries under these Terms of Service.

 

12.6 No agency, partnership, joint venture, or employment is created as a result of these Terms of Service and neither party has any authority of any kind to bind the other party in any respect whatsoever.

 

12.7 All notices under these Terms of Service will be in writing and shall be delivered personally, by certified mail or overnight delivery with return receipt requested, or by email. The addresses and attention for notices to be sent to each party are as set forth on the signature page. Either party may change its address or its designated addressee by giving written notice to the other party in accordance with the terms of this Section 13.7. Notices sent by notices sent by certified mail or overnight delivery service shall be deemed given on the date or receipt or refusal of receipt; notices via e-mail shall be effective if the recipient personally (i.e., not by automated machine response) confirms receipt from the sender; and notices given personally shall be effective when delivered. Notwithstanding the foregoing, notices of breach or termination sent by email are not valid unless also sent by one of the other methods stated herein.

 

12.8 These Terms of Service will be governed by the laws of the State of Delaware, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in Delaware, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of these Terms of Service. THE PARTIES SPECIFICALLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY COURT WITH RESPECT TO ANY CONTRACTUAL, TORTIOUS, OR STATUTORY CLAIM, COUNTERCLAIM, OR CROSS-CLAIM AGAINST THE OTHER ARISING OUT OF OR CONNECTED IN ANY WAY TO THESE TERMS OF SERVICE, BECAUSE THE PARTIES HERETO, BOTH OF WHOM ARE REPRESENTED BY COUNSEL, BELIEVE THAT THE COMPLEX COMMERCIAL AND PROFESSIONAL ASPECTS OF THEIR DEALINGS WITH ONE ANOTHER MAKE A JURY DETERMINATION NEITHER DESIRABLE NOR APPROPRIATE.

 

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