Buzz Frenzy Terms of Service, Last updated June 10th, 2015.
Buzz Frenzy, LLC (“Buzz Frenzy,” “we” or “us”) provides marketing products and services for small businesses (the “Service” or “Services”). These Terms of Services (the “Terms of Service”) govern the relationship between the Client purchasing the Services (the “Client”, or “you”) and Buzz Frenzy (collectively the “Parties” or individually a “Party”). These Terms of Service are effective upon purchase of Services (the “Effective Date”), and remain in effect until terminated as provided below. These Terms of Service may be reviewed at any time at buzzfrenzy.com/terms.
PLEASE REVIEW THIS AGREEMENT CAREFULLY. BY ACCEPTING THESE TERMS YOU AGREE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE, WHICH CONTAIN, AMONG OTHER PROVISIONS, DISPUTE RESOLUTION PROVISIONS, A WAIVER OF CLASS-ACTION RIGHTS AND LIMITATIONS OF LIABILITY. UNLESS OTHERWISE EXPRESSLY STATED, BUZZ FRENZY, LLC DISCLAIMS ANY AND ALL WARRANTIES WHETHER PROVIDED BY THE COMPANY, ITS AFFILIATES, OR ITS RESPECTIVE EMPLOYEES AND AGENTS.
1. Marketing Services:
a. Platform: Buzz Frenzy grants Client access to the Buzz Frenzy web-based software platform. Service includes, but is not limited to, Social Media Amplification. These Services are available for all Buzz Frenzy accounts. Buzz Frenzy will provide the Services outlined by these Terms of Service.
b. License to Access: For so long as the Agreement is in effect and your account is in good standing, you will be granted a revocable, non-transferable, non-sublicenseable, non-exclusive limited license to access the Buzz Frenzy platform. Your access shall be password protected and you acknowledge that you shall not share your password or otherwise provide access to third parties. You acknowledge and agree that you do not have, nor will you claim any right, title or interest in Buzz Frenzy, the platform, software, data, applications, methods of doing business or any other content provided through Buzz Frenzy. You may only access Buzz Frenzy via a web browser or mobile application. You will not attempt to reverse engineer, alter or modify Buzz Frenzy in any way. Buzz Frenzy may terminate the foregoing license if it determines, in its sole discretion, that you have violated the provisions of this license.
c. Tiered Service: Buzz Frenzy provides three tiers of Service based on media spend: Loud – the smallest, Louder – mid level, and Loudest, the largest. Client may switch their tier of Service once per billing cycle at any time during the life of this Agreement. Any change to tier of service will become effective on the first day of the next billing cycle.
d. Facebook Posts: Buzz Frenzy does not create or modify Client’s Facebook posts nor any other form of creative on behalf of the Client. Client is responsible for creating, editing, approving all text, pictures, video, or other media posts being amplified through Buzz Frenzy.
e. Amplification: Amplification of Client’s Facebook posts happen when Client includes #buzzfrenzy in their post. Amplification is based on a number of factors, and cannot be guaranteed. Facebook, at its sole discretion, may reject a Client post for amplification. Any rejected post will not be amplified. Buzz Frenzy may or may not notify Client of any such rejection. No rejected post will incur any charges against the Client’s account. 100% of Client’s monthly Amplification budget will be used in the current billing cycle. In the event Client does not Amplify any post in a billing cycle, any unused budget will not roll over into the next billing cycle, and will not be refunded. Client agrees to forfeit any unused budget amounts in any billing cycle. You may log into the Buzz Frenzy platform at any time to track the results of your posts Amplification.
f. Exclusivity: Buzz Frenzy Service is offered to Client on an exclusive basis. For so long as the Agreement is in effect and your account is in good standing, Client is granted the exclusive use of Service within your industry in a 5 to 10 mile radius of your physical business location.
2. Compliance with Laws/Prohibited Content: Client shall not use or permit the Services to be used in violation of any applicable national, state or local laws or regulations. Without limiting the foregoing, Client may not use any Buzz Frenzy’s Services for any illegal activity including the storage or transmission of information, data, files or links to content that violate any applicable local, state, national or international law. This includes, but is not limited to, pirated software, copyrighted data, or links thereto, the propagation of computer worms or viruses, the use of false identities, or attempts to gain unauthorized entry to any network. Pornography and sex-related merchandising are prohibited on all Buzz Frenzy’s servers. This includes sites that may infer or link to sexual content. Spamming sites and sites selling or promoting bulk email software, services or addresses are also prohibited. The Company may terminate this agreement if it determines, in its sole discretion, Client has violated this policy.
3. Client Obligations: In addition to making all required payments, Client shall(a) cooperate with Buzz Frenzy in all matters relating to the Services and provide access to Client’s Facebook accounts as necessary; (b) respond promptly to questionnaires and any reasonable request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Buzz Frenzy to perform Services in accordance with the requirements of this Agreement; and (c) provide such customer materials or information as Buzz Frenzy may reasonably request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects.
4. Payment: Client will be responsible for payment in full of all associated payments. All payments are due in US dollars. Client will pay all amounts due under this Agreement monthly, in advance. Client hereby irrevocably authorizes Buzz Frenzy to charge the credit card provided for any such amounts on a recurring basis when such amounts are due, and amounts due will be automatically charged, in advance. YOU UNDERSTAND AND ACKNOWLEDGE THAT ALL AMOUNTS OWED MUST BE PAID IN ADVANCE AND THAT, IN ADDITION TO BEING IN BREACH OF YOUR CONTRACTUAL OBLIGATIONS, YOUR SERVICES MAY BE TERMINATED IF TIMELY PAYMENT IS NOT RECEIVED. For monthly billing cycles, recurring payments are collected on the same day of the month. If the initial recurring payment falls on the 29th, 30th, or 31st, Buzz Frenzy eventually adjusts the billing cycle to the 1st of the month.
a. For example: when monthly recurring payments are due and collected on the 31st and the subscription terms are: $50 USD a month; the subscriber signs up on Thursday, July 31. The subscriber is billed as follows: Thursday, July 31 = $50 USD, Saturday, August 31 = $50 USD, Wednesday, October 1= $50 USD, Saturday, November 1= $50 USD and so on… Notice that no recurring monthly payment was collected in September, but recurring payments were collected roughly every 30 days.
b. For Example: when monthly recurring payments are due and collected on the 30th and the subscription terms are: $50 USD a month; the subscriber signs up on Tuesday, December 30. The subscriber is billed as follows: Tuesday, December 30 = $50 USD, Friday, January 30 = $50 USD, Sunday, March 1= $50 USD, Wednesday, April 1= $50 USD and so on… Notice that no recurring monthly payment was collected in February, but recurring payments were collected roughly every 30 days.
a. Term: The Agreement shall begin on the Effective Date, and will remain in effect until terminated as provided below. Client authorizes recurring monthly billing for such period (“Term”).
b. Cancellation: Client may cancel the services at any time. Your services will run through the end of the previously paid billing period and will then be disabled.
c. Buzz Frenzy’s Right to Cancel: We may cancel at any time for any reason by providing written notice of cancellation to you. Cancellation will take effect at the end of the then current billing period. Written notice may be provided to you via email. If we terminate this agreement, we will reimburse you for any unused funds within 30 business days from the effective cancellation date.
d. Loss of Exclusivity: Upon cancellation, for any reason, you will lose the exclusive rights to the Service within your territory. There is no guarantee that the Service will be available in Client’s territory after cancellation.
5. No Refunds: Upon cancellation of this agreement by you for any reason, any and all unused funds or credits will be forfeited. Unless we cancel the agreement pursuant to Section 5.c., no refunds will be provided for amounts already paid to Buzz Frenzy.
e. Charge Disputes: If you dispute any payment with your credit card company or bank, and such dispute is resolved in Buzz Frenzy’s favor, you will be assessed a charge of $100 per dispute initiated. You acknowledge that this amount is not a penalty, but a reasonable amount of liquidated damages to compensate Buzz Frenzy for the additional costs incurred in defending your payment dispute.
6. Intellectual Property: During the Term, you hereby grant to Buzz Frenzy a non-exclusive, royalty-free worldwide license to use, copy, modify, display, broadcast and transmit any of your text, images, logos, trademarks, service marks, promotional materials, photos, audio, and video content relating to your existing website and Facebook feed, as applicable, to the extent necessary for Buzz Frenzy to perform the Services.
7. Representations: You represent that (a) you have the power to enter into this Agreement and be bound to its obligations hereunder; (b) the execution of this Agreement by the Client has been authorized by all necessary corporate actions; and (c) this Agreement constitutes a legal, valid and binding obligation of Client, enforceable against Client in accordance with its terms.
8. Agency: In the event that you are purchasing the Services on behalf of another company, you represent and warrant that you have been authorized by such company to act as its agent in all respects related to the agreement. Without limiting the foregoing, you agree on behalf of each such company that such company has been made aware of, and agrees to be bound by, these Terms of Service.
9. DISCLAIMER OF WARRANTIES: THE COMPANY PROVIDES ALL SERVICES ON AN “AS IS” BASIS, WITHOUT ANY WARRANTY OF ANY KIND AND WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED AVAILABILITY. IF THE MARKETING SERVICES ARE INTERRUPTED OR DELAYED, THE COMPANY’S SOLE OBLIGATION WILL BE TO RESTORE OR PROVIDE SUCH SERVICES AS SOON AS PRACTICABLE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. WITHOUT LIMITING THE FOREGOING, THE COMPANY MAKES NO GUARANTEES WITH RESPECT TO THE PERFORMANCE OF ANY PRODUCT OR SERVICE.
10. LIMITATIONS OF LIABILITY: THE COMPANY SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY CLIENT OR COULD HAVE BEEN REASONABLY FORESEEN, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL THE COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO THE COMPANY FOR THE SERVICES SOLD HEREUNDER. WITHOUT LIMITING THE FOREGOING, THE COMPANY IS NOT RESPONSIBLE FOR ANY DAMAGES DUE TO OMISSIONS OR OTHER ERRONEOUS DATA APPEARING IN CLIENT’S WEBSITE, BLOGS OR ON SOCIAL MEDIA.
11. Dispute Resolution:
a. Good Faith and Cooperation: Each of the Parties agrees to cooperate in good faith, reasonably, and in such a manner as may be necessary or appropriate to implement and give effect to the terms, conditions, and agreements contained herein. Each Party agrees to contact the other in writing (email is acceptable) regarding any claims, disputes or controversies, and allow the other Party no less than 30 days to cure the issue and/or demonstrate that there is in fact no issue present under these Terms of Service prior to initiating any formal legal action, payment dispute, or publishing any disparaging comments detrimental to the reputation, business, or business relationships the other.
b. Agreement to Arbitrate: If the Parties are unable to resolve a dispute in Good Faith, the Parties hereby agree to resolve any dispute that may arise between the Parties, including a breach of any provision in this Agreement, through confidential binding arbitration in Duluth, Minnesota by a single attorney. Such arbitration shall be conducted pursuant to the Commercial Arbitration Rules (CARs) of the American Arbitration Association (AAA). The Parties further agree that they may only bring or participate in claims against the other in their respective individual capacities, and not as a plaintiff or class member in any purported class or representative proceeding.
c. Exceptions to Agreement to Arbitrate: Either Party may assert claims, if they qualify, in small claims court in St. Louis County, Minnesota. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the Good Faith dispute-resolution process described above.
d. Equitable Relief: Notwithstanding any other provision of this Agreement, in the event of a breach or threatened breach of this Agreement by one Party, the Parties hereby consent and agree that the other shall be entitled to seek a temporary or permanent injunction or other equitable relief against such breach or threatened breach without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall be in addition to, not in lieu of, legal remedies, monetary damages or other available forms of relief.
e. Judicial forum for disputes: In the event that the agreement to arbitrate is found not to apply to a Party’s claim, you and Buzz Frenzy agree that any judicial proceeding will be brought in the state courts of St. Louis County, Minnesota, or, if a federal matter, in the Federal District Court of Minnesota. Both you and Buzz Frenzy consent to venue and personal jurisdiction in these courts.
f. Costs and Attorney’s Fees: Except as otherwise provided in these Terms of Service, the Parties will be responsible for their own costs and legal fees.
g. Voluntary and Knowing Waiver: BY ENTERING INTO THIS ARBITRATION AGREEMENT, CLIENT ACKNOWLEDGES AND AGREES THAT IT IS WAIVING THE RIGHT TO A TRIAL BY JURY FOR ANY CLAIM SUBJECT TO ARBITRATION. CLIENT FURTHER ACKNOWLEDGES AND AGREES THAT IT MAY ONLY BRING A CLAIM IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. OTHER RIGHTS THAT CLIENT WOULD HAVE IF IT WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST.
12. Modification: We reserve the right to modify these Terms of Service from time to time, and each such modification shall be effective upon notice to you of such modification. Updated Terms of Service will be maintained at buzzfrenzy.com/terms. All material modifications will apply prospectively only. Your continued use of the Services following any such modification constitutes your agreement to be bound by and your acceptance of the Agreement as so modified. If you do not consent to any modification you must provide written notice (email is acceptable) of your objection within 30 days of such notice. Such objection shall not affect any previously agreed upon obligations of Client.
13. Indemnification: Each Party agrees to indemnify, defend and hold harmless the other Party, its subsidiaries, partners, officers, directors and employees from any and all liability, claims, damages and settlements due to any third party claims or causes of action, including reasonable legal fees and expenses arising out of or related to the indemnifying Party’s material breach of any of its representations or warranties in this Agreement. Client further agrees to indemnify, defend and hold harmless Buzz Frenzy, its subsidiaries, partners, officers, directors, and employees from any third party claims (including, without limitation, reasonable attorneys’ fees and court costs) arising out of or relating to Customer’s breach of any of these Terms or use by Customer or any third party (authorized, permitted or enabled by Customer). This indemnification includes, but is not limited to, actions arising from keywords, content including blogs or material on any website associated with any Advertising Content, Advertiser’s website(s), end user personal or financial data, and Client’s order processing, billing, fulfillment, shipment, collection and/or other customer support associated with any products or services offered, sold or licensed through any Client website. If Customer is a Covered Entity under The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Customer waives any Claims it may have against Buzz Frenzy arising out of or in connection with HIPAA requirements and agrees to indemnify and hold harmless the Indemnified Parties against any and all Claims that are related to or arise from failure to comply with HIPAA requirements.
a. Choice of Law: This agreement and its interpretation, and all controversies arising hereunder, shall be governed by the applicable statutory and common law of the state of Minnesota without giving effect to conflict of laws principles.
b. Entire Agreement: These Terms or Service together with the applicable Privacy Agreement constitute the entire agreement between the Parties. All prior agreements, discussions, representations, warranties and covenants are merged herein. Any amendments or modifications of this agreement shall be in writing and executed by the Parties.
c. Waiver: The failure by either Party to require performance of any provision shall not constitute a waiver nor affect that Party’s right to require performance at any time thereafter.
d. Electronic Signatures: Each party agrees that electronic signatures have the same force and effect as manual signatures. Electronic signature means any electronic sound, symbol or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record.
e. Severability: If any provision of this Agreement or the application thereof is held invalid, illegal or unenforceable by any court of competent jurisdiction, (a) such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law, and (b) the remaining terms, provisions, covenants and restrictions of this Agreement will remain in full force and effect.
f. Assignment: You may not assign any part of the Agreement without the prior written consent of Buzz Frenzy; provided, however, that you may assign this Agreement: (a) to an affiliate of Client; or (b) in connection with a sale of substantially all of your assets or a change of control of at least 50% of the voting equity interests of your business. The Parties’ rights and obligations will bind and inure to the benefit of their respective successors, heirs, executors and assigns.
g. No Third Party Beneficiaries: The parties do not confer any rights or remedies upon any Person other than the parties to this Agreement and their respective successors and permitted assigns
h. Relationship of the Parties: The Parties to the agreement are independent contractors, and no agency, partnership, joint venture or employee/employer relationship is intended or created.
i. Referrals: The Company may provide incentives to third parties to introduce potential Clients to Buzz Frenzy.
j. Survival: The sections labeled Intellectual Property, Disclaimer of Warranties, Limitations of Liability, Dispute Resolution, and Indemnification are intended to survive the termination, cancellation or expiration of this agreement. Notwithstanding the foregoing, Client remains liable for any amounts due to Buzz Frenzy as of the effective date of termination.
k. Subcontracting: The Company may, without your consent, subcontract to any party the performance of all or any of Buzz Frenzy’s obligations under this Agreement provided that Buzz Frenzy remains primarily liable for the performance of those obligations.
l. Taxes: Unless otherwise stated, the fees do not include any taxes, levies, duties or other similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Client is responsible for paying any taxes associated with the purchase of the services hereunder.
m. Trade Name: Buzz Frenzy is a federally registered trademark and registered trade name of Buzz Frenzy, LLC.
n. Headings: Section headings are provided for reference purposes only and in no way define, limit, construe or describe the scope or extent of any section.
o. Force Majeure: Neither party shall have any liability for any failure or delay (other than for an obligation to pay) resulting from any government action, natural disaster, power failure, or any other condition affecting production or delivery in any manner beyond the reasonable control of such party.
p. Notices: All notices required by one party hereunder shall be provided to the other Party at the mailing address or email address provided to the other Party from time to time in writing.