Windsor Circle, Inc. Terms of Use

TERMS OF USE

1.            Services.  The “Services” are those web-based products and services described in that certain sales order (the “Sales Order”), executed by the customer named therein (“Customer”) and Windsor Circle, Inc. (“Windsor Circle”), and offered through www.windsorcircle.com (the “Site”).  The Sales Order is subject to the terms and conditions set forth herein and in any rules, policies and procedures posted on the Site that are incorporated into these terms of use by reference (collectively, this “Agreement”), as may be modified by Windsor Circle from time to time, which modifications shall become effective once posted on the Site.  Customer’s agreement to enter into this Agreement is neither contingent on the delivery of any future functionality or features or on the delivery of any other services, nor is it dependent on any oral or written public comments made by or on behalf of Windsor Circle regarding future functionality or features.  

2.         Pricing and Payment Terms.  Pricing for the Services is set forth in the Sales Order.  If Customer desires to upgrade its Windsor Circle customer account or to add to the Services additional features or functionality provided by Windsor Circle from time to time, it may do so by emailing sales@windsorcircle.com, or by calling 877.848.4113.  As consideration for the Services, Customer agrees to pay the monthly or annual subscription fees set forth in the Sales Order (the “Fees”).  Paid Fees are non-refundable.  Payments for Fees and reimbursements for expenses, if any, will be billed in advance on a monthly or annual basis (as specified in the Sales Order) and will be due upon Customer’s receipt of an invoice, unless otherwise stated on sales order.  In the event Customer fails to make timely payments when due, Windsor Circle may discontinue, terminate or suspend the Services, without incurring any liability to Customer.  Despite any such discontinuation or suspension, Customer acknowledges and agrees that it will be required to pay all Fees due and payable until this Agreement is terminated in accordance with the termination provisions set forth herein.

3.            Proprietary Rights. All software embedded in the Site and the Services developed, owned or controlled by Windsor Circle (as applicable) (the “Software”), and the Services, are and will remain the sole and exclusive property of Windsor Circle.  To the extent such Software is required to be downloaded or installed on Customer’s website, Windsor Circle hereby grants Customer a non-exclusive, non-transferable, non-sublicensable, revocable, Territory (as defined herein)-wide, limited license to use such Software solely in connection with its intended use as part of the Services during the Term.  To the extent Windsor Circle provides Customer with images, template emails, or creative content as part of the Services (collectively, the “Templates”), Windsor Circle hereby grants Customer a non-exclusive, non-transferable, non-sublicensable, revocable, Territory-wide, limited license to use the Templates solely in connection with Customer’s use of the Services.  Accordingly, Customer agrees not to use, copy, remove, publish, distribute, perform or display any Template or any portion thereof in any other context or website or with any other service.  Except as otherwise set forth in the immediately preceding sentences, this is an agreement for services and Customer is not granted any other license hereunder.  Customer will not take any actions inconsistent with Windsor Circle’s ownership of each of Windsor Circle’s rights in and to the Software. Customer agrees not to directly or indirectly: (i) assign, distribute, license, sublicense, transfer, sell, rent, lease, time share, grant a security interest in, or otherwise transfer any rights in or to the Software and/or the Templates, or make the Software and/or the Templates available to third parties except as authorized by this Agreement; (ii) modify, translate, reverse engineer, decompile or disassemble the Software and/or the Templates for any purpose, including, without limitation, the creation of derivative works or similar products; (iii) upload, link to or post any portion of the Software and/or the Templates on a bulletin board, intranet, extranet or web site; (iv) use or distribute the Software and/or the Templates in violation of any applicable laws, regulations or export restrictions; or (v) possess or use the Software in any format other than machine-readable format.  Except as otherwise expressly set forth herein, Customer is and will remain the sole and exclusive owner of all creative content Customer provides to Windsor Circle in connection with Windsor Circle’s performance of its obligations hereunder.  If Customer uses the Services in any country within the European Union, the prohibitions set forth herein will not affect Customer’s rights under any legislation implementing the E.C. Council Directive on the Legal Protection of Computer Programs.  For purposes hereof, “Territory” means the entire world, excluding countries that are the subject of embargoes or sanctions by the United States of America, or with respect to which trade is otherwise prohibited by any instrumentality of the U.S.

4.            Target Data.  In connection with its provision of the Services, Windsor Circle will collect, consolidate and analyze personal information and data about third parties that consent to the receipt of marketing and other content from Customer, or that otherwise interact electronically with Customer, including, but not limited to, through its services, applications, advertisements, emails, and/or website (each such third party, a “Target” and such third party data, the “Target Data”).  Windsor Circle will not own any Target Data; provided, however, that Customer hereby grants to Windsor Circle: (i) a non-exclusive, fully-paid up, limited license to use Target Data in connection with its performance of the Services; and (ii) a non-exclusive, perpetual, irrevocable, worldwide license to use non-personally identifiable Target Data in aggregate and blinded formats that do not identify, reference or imply an association with, Customer or its Targets, for the purposes of creating benchmarking, statistical, research and marketing analyses, surveys, reports and studies.  Customer is not permitted to submit any Target credit card information on the Site or in the Services.  Windsor Circle will not be responsible or liable for any deletion, correction, destruction, damage, loss or failure to store any Target Data.  Subject to the license set forth herein, Target Data provided by Customer will be considered Customer’s Confidential Information (as defined below).   

5.            Customer Information.  Windsor Circle collects certain personal and business-related information about its customers, which generally includes, but is not limited to, contact information (the “Customer Information”).  Customer consents to Windsor Circle’s use and disclosure of such information solely in connection with its provision of the Services.  Subject to the foregoing, Customer Information will be considered Customer’s Confidential Information.

6.            Protection of Passwords.  In connection with Customer’s access to the Services, Customer will create unique user-ids and passwords (the “Passwords”).  Customer agrees to maintain the Passwords in strict confidence and not to provide the Passwords to any third party without first obtaining Windsor Circle’s prior written consent.  In the event any Password is lost or compromised, Customer will be responsible solely for all actions, damages, liabilities, losses, and fees incurred as a result of such loss or compromise, except to the extent arising from Windsor Circle’s gross negligence or willful misconduct.

7.       Confidential Information.  Each Receiving Party (as defined below), agrees to hold in strict confidence, not use except as otherwise authorized herein, and protect from disclosure to unauthorized third parties the Confidential Information of the Disclosing Party (as defined below).  For purposes hereof, “Confidential Information” means any information disclosed by or on behalf of one party (the “Disclosing Party”) to the other party (the “Receiving Party”) that relates to such Disclosing Party that reasonably should be known by the Receiving Party to be confidential or proprietary to the Disclosing Party under the circumstances of disclosure or in light of the nature of the information disclosed.  Confidential Information will not include information that: (i) was publicly available, or that subsequently becomes publicly available, except by wrongful disclosure hereunder by the Receiving Party; (ii) was in the Receiving Party’s possession prior to receipt of the same hereunder, as evidenced by the Receiving Party’s prior written records; (iii) was received from a third party who was not known by the Receiving Party to be under any obligation of confidentiality with respect to such information or to have violated any applicable law; or (iv) can be proven by competent written evidence to have been independently developed by the Receiving Party.  Nothing set forth herein is construed to prohibit Windsor Circle from disclosing Customer’s Confidential Information to any third party that has a need to know such information in connection with the Services or with the enforcement of its rights hereunder.  From time to time, Windsor Circle may be required to disclose Customer’s Confidential Information by order or other requirement of a court (e.g. subpoena), administrative agency, or other governmental body or applicable law, as determined by Windsor Circle or its legal counsel.  In such event, Customer hereby permits Windsor Circle to disclose such information to the extent necessary to comply with such order or legal requirement, which disclosure shall not be construed as a breach of this Section 7.  Customer agrees Windsor Circle has no obligation to retain its Confidential Information following any termination or expiration of this Agreement, and may delete and destroy such Confidential Information (including, without limitation, Target Data and/or Customer Information) without providing Customer with notice of such deletion.

8.         Third Party Products and Services.  The Services interact with and process information provided through Customer’s accounts with certain third party services and products (the “Third Party Accounts”).  Any business relationship, exchange of data or other interaction between Customer and a third party, and/or any purchase, download or use by Customer of any product or service offered by a third party, is solely between Customer and such third party.  Customer acknowledges and agrees Windsor Circle may collect Target Data through the Third Party Accounts in connection with the performance of the Services.  If, at Customer’s request, Windsor Circle provides Customer with a Third Party Account for use in connection with the Services, Customer acknowledges and agrees that such Third Party Account creates a relationship solely between Customer and such third party, and that Windsor Circle provides such Third Party Account solely as a convenience for Customer.  While Windsor Circle may recommend a third party, provide Customer with access to a Third Party Account, and/or rely on data or information provided or generated by such third party’s products and services in the course of providing the Services, Customer hereby acknowledges that Windsor Circle specifically does not warrant the accuracy, reliability or completeness of any such data and information; and agrees that Windsor Circle is not liable for any acts or omissions based on its reliance thereon or any loss or liability caused by such third party.  The termination of Customer’s access to, or use of, any Third Party Account will not terminate this Agreement and Windsor Circle is not responsible for any effect on the Services arising from such termination.  Windsor Circle reserves the right to discontinue the Services (or any part thereof), with or without notice, if Customer’s use of the Service violates any term or condition set forth in this Agreement or in any agreement governing a Third Party Account.

9.          Representations and Warranties.  Customer represents and warrants to Windsor Circle that: (i) if Customer is an entity, it is duly organized and validly existing in good standing under the laws of the state in which it was organized; (ii) it has full power and authority to enter into this Agreement, which constitutes a legal, valid and binding obligation enforceable against it in accordance with the terms hereof; (iii) Customer obtained from each Target such Target’s consent for Windsor Circle to collect and use the Target Data, and to communicate with such Target, in the manner contemplated under this Agreement; (iv) neither it, nor any of its officers, directors, stockholders or employees is located in any U.S. embargoed country, named as a “Specially Designated National” or “Blocked Person” as designated by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), or is otherwise blacklisted by any instrumentality of the U.S.; and (v) its use of the Target Data and the Services, is and will at all times be: (a) in accordance with: (A) all terms, conditions, rules, procedures, policies or other guidelines published by each Third Party Account, and (B) all applicable laws, rules and regulations, including, without limitation, laws related to the sending of duplicative, unsolicited, or deceptive messages (including spam); and (b) without infringement or misappropriation of any intellectual property right or other rights of a third party.  If Customer is located, or plans to use the Services and/or process data from, outside of the U.S., Customer further represents and warrants to Windsor Circle that it abides by and will continue to abide by U.S. and other applicable export control laws and does not and will not take any action which would violate the U.S. Export Administration Regulations, the U.S. Arms Export Control Act or any sanctions policies administered by OFAC, or cause Windsor Circle to be in violation thereof.

10.        Indemnification.  At its sole cost and expense, Customer agrees to defend and hold harmless Windsor Circle and its affiliates, subsidiaries, officers, directors, stockholders, employees, consultants, representatives, agents, successors and assigns (the “Indemnitees”) in any action or claim, and to indemnify Windsor Circle and its Indemnitees from and against any and all losses, liabilities, sums of money, damages, expenses, and costs (including, but not limited to, reasonable courts costs and attorneys’ fees) (collectively, “Claims”) arising from such action or claim and directly related to: (i) Customer’s breach of any term, condition, representation or warranty set forth in this Agreement; (ii) any claim or action brought by or on behalf of a Third Party Account or a Target; (iii) Customer’s infringement, violation or misappropriation of any intellectual property, privacy or other rights of any third party; and/or (iv) any Claim related to Customer’s violation of applicable law.  At its sole cost and expense, Windsor Circle agrees to indemnify and hold harmless Customer and its Indemnitees from and against any and all Claims finally awarded by a court of competent jurisdiction or in a bona fide settlement directly related to a third party action or claim arising from: (a) the infringement or misappropriation of any intellectual property right of a third party to the extent caused by Windsor Circle; and (b) Windsor Circle’s breach of Section 7 above.

11.       Disclaimer of Warranties.  THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WINDSOR CIRCLE DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, TITLE, OR NON-INFRINGEMENT.  WINDSOR CIRCLE DOES NOT WARRANT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS NOR DOES IT GIVE ANY WARRANTY ABOUT THE RESULTS THAT MAY BE OBTAINED BY USING THE SERVICES.  CUSTOMER ACKNOWLEDGES AND AGREES THE SITE AND SERVICES ARE NOT INTENDED TO REPLACE CUSTOMER’S PROFESSIONAL SKILLS OR JUDGEMENT.  CUSTOMER’S USE OF THE SERVICES IS AT CUSTOMER’S OWN RISK, AND CUSTOMER ASSUMES ALL LIABILITY FOR OUTCOMES BASED THEREON. 

12.      Limitation of Liability.  IN NO EVENT WILL WINDSOR CIRCLE BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, LOSS OF PROFITS, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATED TO THE SERVICES, OR TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA OR LOSS OF USE, EVEN IF WINDSOR CIRCLE HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.  FURTHER, IN NO EVENT WILL WINDSOR CIRCLE’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER OR ANY OTHER PARTY FOR CLAIMS, LOSSES, OR DAMAGES OF ANY KIND, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, INDEMNITY OR OTHERWISE, ARISING OUT OF OR RELATED IN ANY WAY TO THIS AGREEMENT OR THE SERVICES EXCEED THE FEES PAID HEREUNDER DURING THE TWELVE (12)-MONTH PERIOD ENDING ON THE DATE OF THE CAUSE OF ACTION UNDERLYING SUCH CLAIM, LOSS OR DAMAGE. 

CUSTOMER ACKNOWLEDGES WINDSOR CIRCLE DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES.  ACCORDINGLY, WINDSOR CIRCLE WILL NOT BE RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS OR ANY ISSUE OUTSIDE OF WINDSOR CIRCLE’S REASONABLE CONTROL.

THE PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THEY ENTER INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY SPECIFIED HEREIN, WHICH ALLOCATE RISK BETWEEN WINDSOR CIRCLE AND CUSTOMER AND FORM A BASIS OF BARGAIN BETWEEN THE PARTIES.  SOLELY IF AND TO THE EXTENT REQUIRED IN ORDER FOR THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION 12 TO BE ENFORCEABLE, NOTHING SET FORTH IN THIS AGREEMENT SHALL EXCLUDE OR LIMIT LIABILITY TO A GREATER EXTENT THAN IS PERMITTED BY APPLICABLE LAW OR SHALL EXCLUDE OR LIMIT LIABILITY FOR FRAUD, FRAUDULENT MISREPRESENTATION OR FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE.

No claim may be asserted by Customer against Windsor Circle more than twelve (12) months after the expiration or termination of this Agreement.  In the event of any failure, or Windsor Circle’s non-provision, of the Services, Customer’s sole and exclusive remedy shall be for Windsor Circle to use commercially reasonable efforts to repair or provide the Services.

13.          Term and Termination.  The initial term of this Agreement commences on the date set forth in the Sales Order and, unless earlier terminated as provided herein, shall continue for that period of time as is set forth in the Sales Order (the “Initial Term”).  Contemporaneous with the expiration of the Initial Term and each successive Renewal Term (as defined herein), this Agreement will automatically renew for successive periods of time, each of which is equivalent to the Initial Term (each, a “Renewal Term”), unless and until terminated in accordance with the terms and conditions set forth herein (the Initial Term, together with each Renewal Term, the “Term”).  A party may terminate this Agreement as of the end of the Initial Term or the then-current Renewal Term, as the case may be, by providing the non-terminating party with written notice of its intention not to renew this Agreement no later than thirty (30) days prior to the end of the Initial Term or such Renewal Term, as the case may be.  A party may terminate this Agreement immediately in the event that: (i) the other party fails to cure a material breach of any term, condition, representation or warranty set forth herein within fifteen (15) days’ after such other party’s receipt of written notice thereof; or (ii) in the event the other party files a petition in bankruptcy or for reorganization or a third party files a petition in bankruptcy or for reorganization against such other party, which is not dismissed within sixty (60) days, or in the event of an assignment by such other party for the benefit of its creditors, or the appointment of a receiver, trustee, liquidator or custodian for all or a substantial part of such other party’s assets.  Customer’s termination notice must be emailed any of the following at Windsor Circle : sales@windsorcircle.com, accounting@windsorcircle.com, their account manager, or their client success manager.  Notwithstanding any termination or expiration of this Agreement, Customer will remain obligated to pay Windsor Circle all Fees which were incurred prior to (and on) the effective date of such termination or expiration, as the case may be.

14.         Governing Law.  This Agreement will be governed by the laws of the State of North Carolina as applied to agreements entered into and performed entirely within the State of North Carolina, except for those conflicts of law rules thereof that would require or permit the application of the laws of another jurisdiction.  Both parties hereto irrevocably consent to the jurisdiction of the state courts located in Durham County, North Carolina and the federal courts located in the State of North Carolina.  The rights and obligations of the parties under this Agreement shall not be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods. 

15.      Notice.  Windsor Circle may provide Customer with general notice by electronic mail to Customer’s e-mail address set forth in a Sales Order or in Customer’s Windsor Circle customer account.  Customer must give notice to Windsor Circle (such notice shall be deemed given when received by Windsor Circle) by emailing any of the followingat Windsor Circle : sales@windsorcircle.com, accounting@windsorcircle.com, their account manager, or their client success manager.  .  Notice will be considered delivered if the sender thereof does not receive any evidence of transmittal failure.

16.       Consent to Use of Electronic Signatures and Records.  Customer acknowledges and agrees that by clicking “I Agree” or “I Accept” anywhere on the Site or by otherwise agreeing to the terms and conditions set forth in any agreement posted on the Site: (i) Customer agrees to conduct electronically the particular transaction into which it is entering; (ii) Customer read, understands and agrees to be bound by the electronic copy of electronic contracts, notices and records to which it is agreeing, including, without limitation, this Agreement; (iii) Customer is capable of printing or storing a copy of electronic records of agreements to which it is agreeing including, without limitation, this Agreement; and (iv) Customer agrees to receive electronically information about the agreements to which it is agreeing including, without limitation, this Agreement.

17.          Miscellaneous.  This Agreement and any statement of work (e.g., for professional services) executed by the parties and expressly referencing this Agreement or the Sales Order constitute the entire agreement and understanding between Windsor Circle and Customer and supersede all prior and contemporaneous agreements, documents, and proposals, oral or written, between Windsor Circle and Customer.  Customer may not transfer, assign, sublicense, or delegate any right or duty under this Agreement to another entity or person without the express written consent of Windsor Circle.  A party’s failure to exercise any of its rights under this Agreement will not constitute or be deemed to constitute a waiver or forfeiture of such rights or of any preceding or subsequent breach or default.  The provisions of this Agreement that by their nature and context are intended to survive the performance and termination of this Agreement will survive the completion of performance and termination of this Agreement.  Customer agrees Windsor Circle will not be liable for delays or failures on performance resulting from causes beyond its reasonable control.  Customer agrees Windsor Circle may use or incorporate any suggestions or recommendations submitted by Customer without compensation or attribution to Customer and Customer hereby assigns to Windsor Circle all rights, title and interest in and to such suggestions or recommendations.  Customer hereby consents to Windsor Circle’s use of Customer’s name and logo in Windsor Circle’s marketing and promotional materials and on the Site.