Terms and Conditions

We are Fanfare Labs, Inc., a Delaware corporation (“Fanfare,” “we,” “our,” “us” or the “Company”), and we operate the Fanfare audience intelligence platform (the “Platform”), our websites at www.fanfaresocial.com (collectively, the “Site”), and the related services described in an Order Form, along with our related hosted applications, mobile or other services, software, APIs, integrations, features and functionalities provided on or in connection with the foregoing (collectively, the “Services”). These Terms and Conditions, together with each Order Form and each exhibit, schedule and addendum hereto or thereto (collectively, these “Terms” or this “Agreement”), constitute a legally binding contract between the client identified in the Order Form (“Client”) and Fanfare regarding Client’s use of the Services. Please read the following terms carefully.

By executing an Order Form that incorporates these Terms by reference, or by accessing or using the Services, Client agrees that Client has read and understood, and, as a condition to Client’s use of the Services, Client agrees to be bound by, these Terms. If Client does not agree to these Terms, Client must not access or use the Services. Certain capitalized terms used in these Terms are defined in Schedule I or in the Order Form.

ARBITRATION NOTICE. CLIENT AGREES THAT DISPUTES ARISING UNDER THESE TERMS WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AS SET FORTH IN SECTION 11.3, AND BY ACCEPTING THESE TERMS, CLIENT AND FANFARE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING.

The parties hereto agree as follows:

1. The Platform; Access and Use

1.1 Provision of Access

Subject to and conditioned on Client’s payment of all fees due under Section 4 and Client’s compliance with all other terms and conditions of this Agreement, Fanfare hereby grants Client a limited, non-exclusive, non-assignable, non-sublicensable and non-transferable right to access and use the Platform during the Term, solely through the client account made available to Client (the “Client Account”) and solely for the Permitted Use. The Platform is made available on a hosted, software-as-a-service basis only and, other than such client-side code as may be necessary for remote access, is not provided in executable object code form or source code form.

1.2 Authorized Users

Client may permit access to the Client Account only by its employees and individual contractors who are authorized by Client and issued unique login credentials (“Authorized Users”), up to the number of Authorized Users specified in the Order Form. Client shall ensure that each Authorized User complies with this Agreement and Client is responsible and liable for each act or omission of an Authorized User that would be a breach of this Agreement if taken by Client.

1.3 Permitted Use

The Services may be used solely for Client’s internal business purposes of analyzing, understanding and engaging Client’s own social media audience (the “Permitted Use”), and not for the benefit of any third party or in the operation of a service bureau, except as expressly set forth in an Order Form.

1.4 API Access

If the Order Form specifies that Fanfare is granting Client access to Fanfare’s application programming interfaces (the “API”), Fanfare grants Client, during the Term, a limited, non-exclusive, non-transferable license, without the right to sublicense, to make calls to the API solely to access the Services for the Permitted Use, subject to the rate limits and technical documentation Fanfare makes available. If the Order Form does not specify API access, no rights to the API are granted.

1.5 Support

Fanfare shall provide email support to Client during Fanfare’s regular business hours for issues in which the Services do not perform in all material respects as described in the Documentation. Fanfare has no obligation to provide support to any person other than Client’s designated contacts.

1.6 Availability

Fanfare shall use commercially reasonable efforts to make the Platform available except for (a) planned downtime, and (b) unavailability caused by circumstances beyond Fanfare’s reasonable control, including denial-of-service attack, failure of Social Media Platforms or other third-party services, Internet service provider failure, or Force Majeure Events.

1.7 Updates

Fanfare reserves the right, in its discretion, to revise, update, upgrade or modify the features and functionality of the Services from time to time, provided that Fanfare shall not materially degrade the core functionality of the Services purchased under an Order Form during the then-current Term.

2. Client Responsibilities; Restrictions

2.1 Client Systems

Client is responsible at its own expense for providing Internet access and all Client Systems needed to access the Services, and for ensuring that Client Systems and all Client Data are free from viruses, worms, trojan horses and other malicious code. Client retains sole control over, and sole responsibility for, all access to and use of the Services through Client Systems or credentials issued to Client, including all results obtained from such use and all conclusions, decisions and actions based on such use.

2.2 Account Security

Client shall keep all usernames, passwords and API keys for the Client Account confidential and secure, shall not permit any person other than an Authorized User to access the Client Account, and shall notify Fanfare promptly upon becoming aware of any unauthorized access to or use of the Client Account.

2.3 Additional Covenants

Client shall (a) comply with all laws applicable to Client’s use of the Services, (b) use the Services only for the Permitted Use, (c) provide only true, complete and accurate information to the Services, and (d) maintain a legally adequate privacy policy governing Client’s collection and use of information about its audience and comply with such policy.

2.4 Prohibited Uses

Client shall not, and shall not permit any other person to, directly or indirectly:

1. rent, lease, lend, sell, sublicense, distribute, publish, transfer or otherwise make available the Services, the Documentation or any Fanfare IP to any other person, including through any time-sharing, service bureau or similar arrangement;
2. copy, modify, adapt, translate or create derivative works or improvements of the Services or any Fanfare IP, except as expressly permitted for Reports under Section 6.2;
3. reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code, underlying models, structure, algorithms or methodologies of the Services, except to the extent such restriction is prohibited by applicable law;
4. bypass, breach or disable any security device or protection used by the Services, or access the Services other than through the Client Account or the API;
5. remove, obscure or alter any proprietary rights notices affixed to or contained in the Services or the Documentation;
6. access or use the Services for purposes of competitive analysis, or for the development, provision or marketing of a competing product or service, or otherwise by or on behalf of a competitor of Fanfare;
7. use any robot, spider, crawler, scraper or other automated means to access the Services other than the API or interfaces Fanfare provides;
8. input, upload or transmit to or through the Services any information or materials that are unlawful or that contain, transmit or activate any malicious code;
9. interfere with or disrupt the integrity or performance of the Services or any network, equipment or server used to provide the Services, or attempt to gain unauthorized access to any of the foregoing;
10. use the Services to send unsolicited communications in violation of applicable law, to harass, threaten or defame any person, or to violate the privacy, publicity, intellectual property or other rights of any person;
11. use the Services in a manner that makes health, safety, life or any critical system dependent upon the performance of the Services;
12. use the Services for any purpose or in any manner prohibited by Section 3.9, Section 3.10 or Section 3.11; or
13. attempt to do, or assist or permit any person in doing, any of the acts described in this Section 2.4.

2.5 Responsibility for Authorized Users

Fanfare has no obligation to any Authorized User, and any breach of this Agreement by an Authorized User is a breach by Client.

2.6 Suspension

Without limiting Fanfare’s termination rights under Section 5.2, Fanfare may suspend Client’s access to all or part of the Services if (a) Client is delinquent in payment of undisputed fees, (b) Fanfare reasonably believes that Client’s use of the Services violates this Agreement, applicable law or the terms of any Social Media Platform, or will subject Fanfare to liability or adversely affect the integrity, security or operation of the Services, (c) suspension is required by law, court order or a Social Media Platform, or (d) suspension is reasonably necessary to address a threat to or attack on the Services. Fanfare shall use commercially reasonable efforts to provide advance notice of any suspension where practicable and to restore access promptly once the basis for suspension is resolved.

3. Data

3.1 Social Media Data; Platform Terms

The Services collect, ingest and analyze content, engagement and related data from Social Media Platforms in connection with Client’s social media properties (“Social Media Data”). Client acknowledges that (a) the availability, scope and continuity of Social Media Data depend on the applicable Social Media Platforms and their APIs, terms of service, developer policies and rate limits, each as modified from time to time, (b) Fanfare does not control the Social Media Platforms and shall not be liable for any suspension, modification, restriction or discontinuation of access to any Social Media Platform or its data, and (c) Client shall comply, and shall cause its Authorized Users to comply, with the applicable terms and policies of each Social Media Platform in connection with Client’s use of the Services. If a Social Media Platform requires removal of data, Fanfare may remove such data from the Services and, upon notice from Fanfare, Client shall promptly remove the corresponding data from any exports in Client’s possession.

3.2 Client Social Accounts

Client authorizes Fanfare to access and connect to the social media accounts, pages, channels and properties designated by Client (the “Client Social Accounts”), using credentials, tokens or authorizations supplied by Client, solely to provide the Services. Client represents that it owns or controls, or is duly authorized by the owner of, each Client Social Account, including with respect to direct messages and other non-public communications made available to the Services through such accounts.

3.3 Ownership of Client Data

As between the parties, Client owns and retains all right, title and interest in and to the Client Data. Fanfare owns and retains all right, title and interest in and to Aggregated Data and Usage Data, neither of which constitutes Client Data.

3.4 License to Client Data

Client hereby grants to Fanfare a non-exclusive, worldwide, royalty-free license, with the right to sublicense to Fanfare’s subcontractors and service providers, to host, copy, process, transmit, display, modify and create derivative works of the Client Data (a) to provide, maintain, secure and support the Services and to generate Reports for Client, (b) to prevent or address service, security or technical problems, (c) to comply with law or legal process, and (d) to create Aggregated Data in accordance with Section 3.6. Except as set forth in this Section 3.4, Fanfare shall not use, disclose or exploit Client Data for any other purpose without Client’s prior written consent.

3.5 Client First-Party Data

Client shall not upload or provide to the Services any Client First-Party Data unless (a) the Order Form expressly authorizes the ingestion of Client First-Party Data, and (b) the parties have executed the Data Processing Addendum referenced in the Order Form (the “DPA”), in which case Fanfare shall process Personal Information contained in Client First-Party Data in accordance with the DPA. Client First-Party Data constitutes Client Data under this Agreement and is subject to Sections 3.8 and 3.9.

3.6 Aggregated Data

Fanfare may create and use data and information that is derived from Client Data, Social Media Data or Client’s use of the Services and that has been aggregated or de-identified in a manner that does not identify, and is not reasonably capable of identifying, Client, any Client Social Account or any natural person (“Aggregated Data”), including to develop, improve, train, benchmark, operate, analyze and promote Fanfare’s products and services. Fanfare shall not, and shall not permit any third party to, re-identify Aggregated Data or associate Aggregated Data with Client or any natural person.

3.7 Usage Data

Fanfare may collect diagnostic, technical, telemetry, usage and performance information regarding the use and operation of the Services (“Usage Data”) and may use Usage Data to monitor, secure, maintain and improve the Services. Usage Data shall not include the content of Client Data and shall not identify any natural person.

3.8 Privacy; Data Protection

Each party shall comply with all data protection and privacy laws applicable to it in connection with this Agreement. Fanfare shall maintain commercially reasonable administrative, physical and technical safeguards designed to protect the security, confidentiality and integrity of Client Data, and shall notify Client without undue delay after becoming aware of any confirmed unauthorized access to or disclosure of unencrypted Client Data on systems controlled by Fanfare. Fanfare’s processing of Personal Information on behalf of Client, if any, is governed by the DPA where the DPA has been executed.

3.9 Prohibited Data

Client shall not provide to the Services, and Client Data shall not include, (a) payment card data or other financial account numbers, (b) government-issued identification numbers, (c) protected health information as defined under the Health Insurance Portability and Accountability Act, (d) precise geolocation information, (e) information relating to persons Client knows to be under the age of sixteen, or (f) any other special or sensitive categories of Personal Information under applicable law, in each case except to the extent expressly authorized in the Order Form and in the DPA.

3.10 No Re-Identification

Client shall not use the Services, or combine any output of the Services with other data, to identify or re-identify any natural person from de-identified, aggregated or anonymized information, or to derive or infer the identity of the author of any anonymized or pseudonymous content, except to the extent the identity of such person is already lawfully known to Client through the applicable Client Social Account.

3.11 Restricted Uses of Output

Client shall not use the Services, the Reports or any output of the Services (a) to make any determination regarding any person’s eligibility for credit, insurance, employment, housing, healthcare, government benefits or any other purpose that would cause any such output to constitute a “consumer report” under the Fair Credit Reporting Act or analogous law, (b) for law enforcement, surveillance, intelligence-gathering or monitoring of individuals on behalf of any governmental entity, or (c) to target, profile or discriminate against any person on the basis of any legally protected characteristic.

3.12 Data Export

During the Term, Client may export Client Data and Reports using the export functionality of the Services. For a period of thirty (30) days following termination or expiration of this Agreement, and provided that all undisputed fees due under Section 4 have been paid, Fanfare shall, upon Client’s written request, make Client Data then in Fanfare’s possession available for export in a commonly used, machine-readable format. Thereafter, Fanfare shall have no obligation to retain Client Data and may delete Client Data from its systems, subject to routine backup retention and applicable law.

4. Fees and Payment

4.1 Fees

Client shall pay the fees set forth in the Order Form (the “Fees”) in accordance with this Section 4 and the Order Form. Except as expressly set forth in this Agreement or the Order Form, all payment obligations are non-cancelable and all Fees paid are non-refundable.

4.2 Payment Terms

Unless otherwise set forth in the Order Form, Fanfare shall invoice subscription Fees in advance for each billing period, and all invoiced amounts are due within thirty (30) days after the date of invoice. Client authorizes Fanfare to charge any payment method provided by Client for Fees as they become due if so elected in the Order Form.

4.3 Taxes

Fees are exclusive of all sales, use, excise, value-added and similar taxes, levies and duties, all of which are Client’s responsibility, other than taxes based on Fanfare’s net income. If Client is exempt, Client shall provide Fanfare a valid exemption certificate.

4.4 Late Payment

Past-due undisputed amounts accrue interest at the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by law, and Client shall reimburse Fanfare for its reasonable costs of collection, including reasonable attorneys’ fees.

4.5 Fee Disputes

If Client disputes any invoiced amount in good faith, Client shall pay all undisputed amounts when due and provide written notice of the disputed amount, with reasonable detail, within thirty (30) days after the date of the applicable invoice, and the parties shall work together in good faith to resolve the dispute promptly. Client waives the right to dispute any invoice for which such notice is not given within such period.

4.6 Renewal Pricing

Fanfare may increase the Fees effective as of the commencement of any Renewal Term by providing notice to Client at least sixty (60) days before the start of such Renewal Term. If Client does not agree to the increase, Client may elect not to renew in accordance with Section 5.1.

5. Term and Termination

5.1 Term

The initial term of this Agreement commences on the Effective Date and continues for the initial term specified in the Order Form (the “Initial Term”). Unless otherwise specified in the Order Form, this Agreement will automatically renew for successive renewal terms of one (1) year each (each, a “Renewal Term” and, together with the Initial Term, the “Term”) unless either party gives the other written notice of non-renewal at least sixty (60) days before the expiration of the then-current Term.

5.2 Termination for Cause

Either party may terminate this Agreement, effective upon written notice to the other party, if the other party (a) materially breaches this Agreement and such breach remains uncured thirty (30) days after the non-breaching party provides written notice of the breach, provided that Fanfare may terminate immediately upon notice for Client’s breach of Section 2.4, Section 3.10, Section 3.11 or Section 7, or for Client’s failure to pay undisputed Fees within ten (10) days after notice of delinquency, or (b) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors that is not dismissed within sixty (60) days.

5.3 Effect of Termination

Upon any termination or expiration of this Agreement, (a) all rights and licenses granted to Client hereunder terminate and Client shall immediately cease all use of the Services, (b) Fanfare may deactivate the Client Account, subject to Section 3.12, (c) Client shall pay all Fees accrued through the effective date of termination, and, if Fanfare terminates for Client’s uncured material breach, all Fees that would have become payable for the remainder of the then-current Term shall become immediately due and payable, and (d) each party shall return or destroy the Confidential Information of the other party in accordance with Section 7, except that Fanfare may retain Client Data solely as provided in Section 3.12. If Client terminates for Fanfare’s uncured material breach, Fanfare shall refund to Client the prorated portion of any prepaid Fees attributable to the unexpired portion of the then-current Term.

5.4 Survival

Sections 3.3, 3.4 (solely as necessary to effect Section 3.12), 3.6, 3.7, 3.10, 3.11, 3.12, 4, 5.3, this Section 5.4, and Sections 6, 7, 8.4, 9, 10 and 11, together with Schedule I and any other provision that by its nature should survive, shall survive any termination or expiration of this Agreement.

6. Proprietary Rights

6.1 Fanfare IP

Fanfare owns and shall retain all right, title and interest in and to the Platform, the Services, the API, the Documentation, the Site, all software, models, algorithms, taxonomies, methodologies and know-how used to provide the foregoing, Aggregated Data, Usage Data, and all modifications, improvements and derivative works of any of the foregoing, together with all Intellectual Property Rights therein (collectively, “Fanfare IP”). Except for the limited rights expressly granted in this Agreement, nothing in this Agreement grants Client any right, title or interest in or to any Fanfare IP, whether expressly, by implication, estoppel or otherwise.

6.2 Reports

The Services generate reports, profiles, analytics, insights and other output made available to Client through the Services (“Reports”). As between the parties, Client owns the Client Data included in Reports, and Fanfare owns all other right, title and interest in and to the Reports, including the underlying templates, formats, compilations and arrangements. Subject to this Agreement, Fanfare grants Client a non-exclusive, non-transferable license during the Term to use, reproduce and display Reports for the Permitted Use, including sharing Reports internally and with Client’s professional advisors under obligations of confidentiality. Reports shall not be sold, licensed or distributed to third parties on a standalone basis. Fanfare has no obligation to retain Reports after termination or expiration of this Agreement, subject to Section 3.12.

6.3 Feedback

If Client provides suggestions, ideas or other feedback regarding the Services (“Feedback”), Fanfare may use and exploit the Feedback without restriction or obligation, provided that Fanfare shall not identify Client as the source of the Feedback without Client’s consent.

6.4 Publicity

Fanfare may identify Client by name and logo as a customer of Fanfare on Fanfare’s website and in its marketing materials, in a manner consistent with Client’s brand guidelines as provided to Fanfare. Any other use of Client’s name or marks, including press releases and case studies, requires Client’s prior written consent. Client may revoke the foregoing permission at any time by written notice, in which case Fanfare shall discontinue new uses within a commercially reasonable period.

7. Confidentiality

7.1 Confidential Information

“Confidential Information” means all non-public information disclosed by or on behalf of a party (the “Disclosing Party”) to the other party (the “Receiving Party”) in connection with this Agreement that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Client Data is Client’s Confidential Information; the non-public elements of the Services, the Documentation and Fanfare’s security information are Fanfare’s Confidential Information; and the terms and pricing of this Agreement and each Order Form are the Confidential Information of both parties.

7.2 Obligations

The Receiving Party shall (a) not use the Disclosing Party’s Confidential Information for any purpose other than exercising its rights or performing its obligations under this Agreement, (b) not disclose the Disclosing Party’s Confidential Information to any third party other than the Receiving Party’s employees, contractors, professional advisors and service providers who have a need to know such information for purposes of this Agreement and who are bound by confidentiality obligations at least as protective as those in this Section 7, and (c) protect the Disclosing Party’s Confidential Information using at least the same degree of care it uses to protect its own similar information, and no less than a reasonable degree of care. The Receiving Party is responsible for any breach of this Section 7 by any person to whom it discloses Confidential Information.

7.3 Exceptions

The obligations in this Section 7 do not apply to information that the Receiving Party can demonstrate (a) is or becomes generally available to the public other than through breach of this Agreement, (b) was rightfully known to the Receiving Party without confidentiality restriction before receipt from the Disclosing Party, (c) is rightfully received from a third party without breach of any obligation of confidentiality, or (d) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.

7.4 Compelled Disclosure

The Receiving Party may disclose Confidential Information to the extent required by law, regulation or legal process, provided that, to the extent legally permitted, the Receiving Party gives the Disclosing Party prompt written notice and reasonable cooperation, at the Disclosing Party’s expense, to seek confidential treatment or a protective order, and discloses only the portion of Confidential Information legally required to be disclosed.

7.5 Equitable Relief

Each party acknowledges that a breach or threatened breach of this Section 7 or of Section 2.4 may cause the other party irreparable harm for which monetary damages would be an inadequate remedy, and that the other party shall be entitled to seek equitable relief, including injunctive relief and specific performance, in addition to all other remedies available at law or in equity, without any requirement to post a bond.

8. Representations, Warranties and Disclaimers

8.1 Mutual Representations

Each party represents and warrants that (a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, (b) it has the full right, power and authority to enter into and perform this Agreement, and (c) the person executing the Order Form on its behalf is duly authorized to bind it.

8.2 Client Data Warranties

Client represents, warrants and covenants that (a) Client owns or has obtained all rights, permissions and consents necessary to provide the Client Data to Fanfare and to authorize Fanfare to process the Client Data as contemplated by this Agreement, (b) Client’s collection and use of information regarding its audience, and Client’s instructions to Fanfare with respect to Client Data, comply with applicable law, Client’s published privacy policy, and Client’s agreements with third parties, including the applicable terms of the Social Media Platforms, and (c) the Client Data, and Fanfare’s processing of the Client Data in accordance with this Agreement, do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, privacy rights or other rights of any third party or violate any applicable law.

8.3 Limited Service Warranty

Fanfare warrants that it will perform the Services in a professional and workmanlike manner consistent with generally accepted industry standards. Client’s sole and exclusive remedy, and Fanfare’s entire liability, for breach of the foregoing warranty is re-performance of the affected Services or, if Fanfare cannot re-perform within a reasonable period, termination of the affected Order Form and a prorated refund of prepaid Fees for the unexpired portion of the then-current Term.

8.4 Disclaimer

8.5 No Professional Advice

The Services and the Reports do not constitute legal, financial, accounting or other professional advice, and neither Fanfare nor its personnel is engaged to make recommendations or furnish advice based on Client Data.

9. Indemnification

9.1 Indemnification by Client

Client shall defend, indemnify and hold harmless Fanfare and its officers, directors, employees, agents and affiliates from and against any and all losses, damages, liabilities, judgments, settlements, penalties, fines, costs and expenses, including reasonable attorneys’ fees (“Losses”), arising out of any third-party claim, action, demand or proceeding (each, a “Claim”) to the extent based on (a) Client Data, including any allegation that Fanfare’s processing of Client Data in accordance with this Agreement infringes, misappropriates or violates the rights of any third party or applicable law, (b) Client’s breach of Section 2.4, Section 3.9, Section 3.10, Section 3.11 or Section 8.2, (c) Client’s use of the Services in violation of this Agreement or applicable law, or (d) any conclusions, decisions, acts or omissions of Client or any third party based on the Reports or other output of the Services.

9.2 Indemnification by Fanfare

Fanfare shall defend, indemnify and hold harmless Client and its officers, directors, employees and agents from and against any and all Losses arising out of any Claim alleging that the Services, as provided by Fanfare and used in accordance with this Agreement, infringe or misappropriate any United States patent, copyright, trademark or trade secret of a third party (an “Infringement Claim”).

9.3 Exclusions

Fanfare shall have no obligation under Section 9.2 to the extent an Infringement Claim arises from (a) Client Data or any Social Media Data, (b) use of the Services in combination with any hardware, software, data or service not provided or authorized by Fanfare, where the Claim would not have arisen but for such combination, (c) modifications to the Services made by anyone other than Fanfare or its authorized representatives, or (d) use of the Services in violation of this Agreement or after Fanfare has notified Client to cease the allegedly infringing use.

9.4 Mitigation

If the Services become, or in Fanfare’s reasonable opinion are likely to become, the subject of an Infringement Claim, Fanfare may, at its option and expense, (a) procure the right for Client to continue using the Services, (b) modify or replace the Services so that they are non-infringing without materially degrading their functionality, or (c) if neither of the foregoing is commercially practicable, terminate the affected Order Form and refund the prorated portion of any prepaid Fees for the unexpired portion of the then-current Term. This Section, together with Section 9.2, states Fanfare’s sole liability, and Client’s exclusive remedy, for any actual or alleged infringement or misappropriation of Intellectual Property Rights by the Services.

9.5 Procedures

The party seeking indemnification shall provide the indemnifying party with (a) prompt written notice of the Claim, provided that failure to give prompt notice relieves the indemnifying party of its obligations only to the extent it is materially prejudiced thereby, (b) sole control of the defense and settlement of the Claim, provided that the indemnifying party shall not settle any Claim in a manner that imposes any liability or admission on the indemnified party without the indemnified party’s prior written consent, not to be unreasonably withheld, and (c) reasonable cooperation, at the indemnifying party’s expense. The indemnified party may participate in the defense with counsel of its own choosing at its own expense.

10. Limitation of Liability

10.1 Exclusion of Certain Damages

10.2 Liability Cap

10.3 Exceptions

The exclusions and limitations in Sections 10.1 and 10.2 do not apply to (a) a party’s indemnification obligations under Section 9, (b) a party’s breach of its confidentiality obligations under Section 7, (c) Client’s payment obligations under Section 4, (d) a party’s fraud, gross negligence or willful misconduct, or (e) Client’s infringement or misappropriation of Fanfare IP or breach of Section 2.4; provided that, with respect to clauses (a) and (b), Fanfare’s aggregate liability shall not exceed three (3) times the amount described in Section 10.2. The parties acknowledge that the limitations in this Section 10 reflect an agreed allocation of risk and are an essential basis of the bargain between the parties, and shall apply notwithstanding the failure of any limited remedy of its essential purpose.

11. Miscellaneous

11.1 Assignment

Neither party may assign or otherwise transfer this Agreement, in whole or in part, without the prior written consent of the other party, which shall not be unreasonably withheld, conditioned or delayed, except that either party may assign this Agreement in its entirety, upon notice but without consent, to an affiliate or to a successor in interest in connection with a merger, reorganization, or sale of all or substantially all of the assets or equity of such party. Any purported assignment in violation of this Section is void. This Agreement is binding upon and inures to the benefit of the parties and their respective permitted successors and assigns.

11.2 Governing Law

This Agreement, and any dispute arising out of or related to this Agreement, is governed by the laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any other jurisdiction.

11.3 Dispute Resolution; Arbitration; Class Waiver

PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE DISPUTES AND LIMITS THE MANNER IN WHICH THE PARTIES CAN SEEK RELIEF. The parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement through informal negotiation for at least thirty (30) days after written notice of the dispute. Any dispute not so resolved shall be finally resolved by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, before a single arbitrator, seated in New York County, New York, conducted in English and on a confidential basis, except that either party may seek equitable relief in any court of competent jurisdiction for actual or threatened infringement or misappropriation of Intellectual Property Rights or breach of confidentiality obligations. Judgment on the award may be entered in any court of competent jurisdiction, and the state and federal courts located in New York County, New York shall have exclusive jurisdiction over any proceedings to compel arbitration, confirm or challenge an award, or hear any claim not subject to arbitration, and each party submits to the personal jurisdiction of such courts. EACH PARTY WAIVES ANY RIGHT TO A TRIAL BY JURY AND ANY RIGHT TO COMMENCE OR PARTICIPATE IN ANY CLASS ACTION, CLASS ARBITRATION OR OTHER REPRESENTATIVE PROCEEDING AGAINST THE OTHER PARTY.

11.4 Notices

All notices under this Agreement must be in writing and are deemed given (a) upon personal delivery, (b) one (1) business day after deposit with a nationally recognized overnight courier, (c) three (3) days after deposit in the United States mail, postage prepaid, certified with return receipt requested, or (d) upon transmission by email to the notice address specified in the Order Form, provided no bounce or error message is received, except that notices of breach, termination or an indemnifiable Claim sent by email must be confirmed by one of the other methods described above. Routine billing, invoicing and operational notices may be given by email to the addresses specified in the Order Form.

11.5 Force Majeure

Neither party shall be liable for any delay or failure to perform its obligations under this Agreement, other than payment obligations, to the extent caused by an event beyond such party’s reasonable control, including acts of God, natural disasters, epidemics, war, terrorism, civil unrest, labor disputes, governmental action, utility or telecommunications failures, failures of Social Media Platforms or other third-party services, and denial-of-service or similar attacks (each, a “Force Majeure Event”), provided that the affected party gives prompt notice and uses commercially reasonable efforts to mitigate the effects of the Force Majeure Event. Either party may terminate this Agreement upon written notice if a Force Majeure Event affecting the other party continues for more than thirty (30) consecutive days.

11.6 Entire Agreement; Order of Precedence

This Agreement, including each Order Form, the DPA (if executed) and all schedules and exhibits, constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous proposals, understandings and agreements, whether written or oral, relating to such subject matter. In the event of a conflict, the following order of precedence applies: (a) the DPA, solely with respect to the processing of Personal Information; (b) the Order Form; and (c) these Terms and Conditions.

11.7 Amendment

Except as expressly set forth in this Agreement, no amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each party. Fanfare may update these Terms and Conditions from time to time by posting the updated version and providing notice to Client, and any such update shall become effective as to Client upon the commencement of the next Renewal Term following such notice.

11.8 Severability; Waiver

If any provision of this Agreement is held invalid or unenforceable, such provision shall be modified and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in full force and effect. No waiver under this Agreement is effective unless in writing and signed by the waiving party, and no failure or delay in exercising any right will operate as a waiver of that or any other right.

11.9 Independent Contractors

The parties are independent contractors, and nothing in this Agreement creates any agency, partnership, joint venture, employment or fiduciary relationship between the parties. Neither party has authority to bind the other or to make any representation or warranty on behalf of the other.

11.10 No Third-Party Beneficiaries

This Agreement is for the sole benefit of the parties and their respective permitted successors and assigns, and nothing in this Agreement confers on any other person any right, benefit or remedy.

11.11 Export and Sanctions Compliance

Client represents that it is not located in, organized under the laws of, or ordinarily resident in any jurisdiction subject to comprehensive United States sanctions, and is not identified on any United States government restricted-party list. Client shall not use, export, re-export or transfer the Services in violation of applicable export control or sanctions laws.

11.12 Interpretation

In this Agreement, unless the context requires otherwise, (a) the singular includes the plural and vice versa, (b) “including” and its variants mean “including without limitation,” (c) “or” is used in the inclusive sense, (d) references to a law mean such law as amended and in effect from time to time, including regulations thereunder, (e) references to Sections, Schedules and Exhibits are to this Agreement, and a reference to a Section includes all of its subsections, and (f) section headings are for convenience only and do not affect interpretation.

11.13 Counterparts

Each Order Form may be executed in counterparts, including by electronic signature, each of which is deemed an original and all of which together constitute one agreement.

Schedule I · Definitions

“Aggregated Data” has the meaning set forth in Section 3.6.

“API” has the meaning set forth in Section 1.4.

“Authorized User” has the meaning set forth in Section 1.2.

“Client Account” has the meaning set forth in Section 1.1.

“Client Data” means all data, information, content and materials uploaded, submitted or otherwise provided by or on behalf of Client to the Services, together with the Social Media Data collected by the Services from the Client Social Accounts on Client’s behalf, and including any Client First-Party Data authorized under Section 3.5. Client Data does not include Aggregated Data, Usage Data or any Fanfare IP.

“Client First-Party Data” means data regarding Client’s audience that is collected by Client outside of the Social Media Platforms and provided by or on behalf of Client to the Services, which may include email addresses, purchase and transaction records (excluding payment card information), and customer relationship management records.

“Client Social Accounts” has the meaning set forth in Section 3.2.

“Client Systems” means Client’s information technology infrastructure, including computers, software, hardware, databases, electronic systems and networks, whether operated directly by Client or through the use of third-party services.

“Documentation” means the user documentation, guides and help materials that Fanfare makes available for the Services, as updated from time to time.

“DPA” has the meaning set forth in Section 3.5.

“Fanfare IP” has the meaning set forth in Section 6.1.

“Intellectual Property Rights” means all patents, copyrights, trademarks, trade secrets, database rights, moral rights and all other intellectual property and proprietary rights of any kind, whether registered or unregistered, anywhere in the world.

“Order Form” means each ordering document entered into between Fanfare and Client that references and incorporates these Terms and Conditions, including any addenda and supplements thereto.

“Permitted Use” has the meaning set forth in Section 1.3.

“Personal Information” means any information that identifies, relates to, describes, or is reasonably capable of being associated or linked with an identified or identifiable natural person or household, including “personal information” and “personal data” as defined under applicable data protection laws.

“Platform” has the meaning set forth in the preamble.

“Reports” has the meaning set forth in Section 6.2.

“Services” has the meaning set forth in the preamble.

“Social Media Data” has the meaning set forth in Section 3.1.

“Social Media Platforms” means the third-party social media networks, platforms and services from which the Services collect data in connection with the Client Social Accounts, as supported by Fanfare from time to time.

“Usage Data” has the meaning set forth in Section 3.7.

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Questions about these Terms may be directed to Fanfare Labs, Inc. at privacy@fanfaresocial.com. Our privacy policy describes how we handle personal information, and our data deletion page explains how connected account data is removed.