CM-13-04-045ROUND ROCK TEXAS
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City of Round Rock
Agenda Item Summary
Agenda Number:
Title: Consider executing a Subscription Agreement for Vocus Marketing Suite
with Vocus, Inc.
Type: City Manager Item
Governing Body: City Manager Approval
Agenda Date: 4/26/2013
Dept Director: Will Hampton, Communications Director
Cost: $19,650.00
Indexes: General Fund
Attachments: Vocus Contract_citymgr_042613.pdf
Text of Legislative File CM -13-04-045
This tool would allow us to further leverage the City's social media and public relations efforts. One
of the real attractions of this tool is the metrics/feedback that we would receive every time the City
issues a press release, send out a tweet or post to the City's Facebook page.
PARD will contribute an additional $2,400 since they have more subscribers (email addresses). This
new service would also allow both PARD and the library to discontinue with their purchase of
Constant Contact for their email newsletters.
City of Round Rock Page 1 Printed on 4/25/2013
CONTRACT APPROVAL FORM FOR CITY MANAGER ACTION
Required for Submission of Specific City Manager Items
Department Name: Administration
Project Mgr./ Contact: Will Hampton
City Manager Approval
CMA Wording
Project Name: Subscription Agreement
ContractorNendor: Vocus, Inc.
Consider executing a Subscription Agreement for Vocus Marketing Suite with Vocus, Inc.
Approval
X❑Employee EE Bowde
Date April 24, 2013
Notes/Comments
Subscription Agreement
Vocus, Inc.
12051 Indian Creek Court
Beltsville, MD 20705
United States
Phone: (301) 479-3520
Fax: (240) 559-0892
Tax ID: 58-1806705
Date: 04/18/2013
Sales Rep: Dustin Kiernan
Cust No:69153
Sales Order No.: 95226
Subscriber:
City of Round Rock, Texas
Will Hampton
221 E. Main Street
Suite 221
Round Rock, TX 78664-5271
United States
Phone: 512-218-5409
Bill To:
City of Round Rock, Texas
Will Hampton
221 E. Main Street
Suite 221
Round Rock, TX 78664-5271
United States
Phone: 512-218-5409
Item
Qty Description
Users/Options Subscription Term
Price - USD
P-VM2-PLAT1
2C
P-VM-IC35K
P-VM-ICU1OK
1.00 Vocus Marketing Suite: Platinum
- 15,000 email subscribers +
unlimited Premium releases
w/cap at 1 per day, 4 profiles
(Agencies need one profile per
client)
1.00 iContact — 35K Subscribers
1.00 iContact — Upgrade of additional
10K Subscribers
4 05/01/2013-10/30/2014
05/01/2013-10/30/2014
05/01/2013-10/30/2014
14,925.00
3,600.00
1,125.00
Payment Terms:
$14738 due upon signing, $4912 due 10/1/2013
Total:
19,650.00
Note: The prices above do not include sales taxes, other business taxes or travel expenses. Sales with "Bill To" addresses in AZ, DC,
MA, NJ, NM, NY, OH, PA, TX and WA are subject to sales taxes or other business taxes. Invoices will reflect any such taxes collected
by Vocus and travel expenses for services rendered on site will be billed separately.
AcceptecLaad agreed to:
,#'141,P13,9012,e
Subscriber Signat Date
Printed Name
C -k\ ,ding V O (
Title
Phil Pegher
PrittlidillYarket Dirertor
Title
Date 3/3
CAN -13-64- cLS
SUBSCRIPTION AGREEMENT TERMS AND CONDITIONS
For good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties agree as follows:
1. SUBSCRIPTION
A. Subject to the terms and conditions of this agreement, the
subscriber ("Subscriber") named in the first page (the "Cover
Page") of this subscription agreement (the "Agreement") hereby
subscribes to the on -demand relationship management service (the
"Service") made available by Vocus, Inc. ("Vocus"). Vocus grants
Subscriber a non-exclusive, revocable, non -transferable (other than
as set forth in this Agreement), non -sublicensable right to access
and use those modules of the Service set forth on the Cover Page
for its own internal business purposes in accordance with the term s
and conditions in this Agreement. Subscriber shall not (i) license,
sublicense, sell, resell, transfer, assign, or otherwise commercially
exploit or make available to any third party the Service in any way;
or (ii) access the Service in order to (a) bu ild a competitive product
or service, (b) build a product using similar ideas, features,
functions or graphics of the Service, or (c) copy any ideas, features,
functions or graphics of the Service.
B. This Section 1.B sets forth the terms and conditions gov erning
Vocus' provision and Subscriber's use of Vocus' content
monitoring service currently known as News On -Demand, News
Management, Social Media or Broadcast Media (collectively and
individually the "Monitoring Service") and only applies if such
service is included on the Cover Page, or is part ofa suite of
purchased services, in either case, the Monitoring Service shall be
considered part of the Service.
(i) Vocus will monitor various sources on a daily basis for
mentions of words or phrases specified by Su bscriber (each
word or phrase a "Subscriber Query"). Vocus reserves the
right, in its sole and absolute discretion, to refuse to undertake
any query that Vocus reasonably deems improper or unlawful.
(ii) Subscriber can access the text (or portions of the text) and
video clips containing the Subscriber Queries through the
Service. Using the Service's functionality, Subscriber may e
mail text, links viewable within the Service or video clips to
Subscriber's employees, agents, contractors or clients (in the
case of agencies who use the Service on behalf of a client)
("Allowed Recipients") solely for use in relation to
Subscriber's or client's (in case of agencies who use the
Service on behalf of a client) internal business purpose.
(iii) Neither Subscriber nor Allowed Recipients may (a) resell
any text or video clips supplied hereunder (including any
portion thereof); or (b) distribute or transfer, by any means
whatsoever, any text or video clips received via the Service (or
copies thereof), to any person, organization or institution other
than Allowed Recipients. Subscriber warrants that text or
video clips provided to Subscriber through the use of the
Service will not be resold, republished or otherwise
systematically distributed to third parties in any form,
including but not limited to via an intranet, extranet or Internet
site. Notwithstanding anything to the contrary in this Section
1.B, Subscriber may, via Vocus functionality, post, in
electronic format, individual articles, video clips, reports or the
like, received via the Service to an intranet site for access and
use solely by Allowed Recipients.
(iv) Subscriber acknowledges and agrees that in providing
the Service, Vocus will supply information, including news
mentions, prepared by others ("Third Party Content") , and
Vocus is not responsible for the content of any such Third
Party Content. Vocus makes no representation or warranty,
whether express or implied, regarding the origin, accuracy,
correctness, completeness, subject matter, content, or editorial
approach of any Third Party Content.
(v) Subscriber acknowledges and agrees that the Third Party
Content monitored by Vocus is subject to copyrights owned by
third parties. Vocus does not imply, represent or warrant, by
virtue of supplying information incorporating Third Party
Content, that Vocus holds or grants any license to use any text ,
video clips or graphics provided, including news mentions or
links to such mentions. Subscriber's use of any text , video
clips or graphics provided hereunder, other than in accor dance
with the terms set forth herein, shall be at Subscriber's sole
risk and expense. Further, Subscriber's use of information
obtained through the Service may be subject to restrictions
imposed by one or more third -party copyright owners, and
Subscriber agrees that it shall comply with any such
restrictions.
(vi) Vocus does not represent or warrant that any specific
source will be monitored by Vocus. Vocus reserves the right
to change the sources that it monitors at any time.
(vii) Certain sources, including but not limited to The Wall
Street Journal, may limit Subscriber's ability to view content
or access links through the Service. Subscriber agrees that it
shall comply with any such restrictions.
(viii) If Subscriber provides users in the United Kingdom
(UK) with access to the Monitoring Service, th en Subscriber
shall:
Obtain a license for NLA Content directly from the
Newspaper Licensing Agency ("NLA") for such
UK users;
Unless licensed by the NLA, not to further
reproduce, copy, distribute, display, sell, publish,
broadcast, circulate, deliver or transmit NLA
Content either internally or to any third party (with
the exception of licensed Public Relations
Consultancies and/or Trade/Professional
Subscriber
Vocus
Associations) so as to infringe the intellectual
property rights vested in the NLA;
Not remove, conceal or alter any copyright notices
contained on or within the NLA Content as
accessed or delivered;
Not store NLA Content in electronic form as part of
any library or archive of information other than
within the Service; and
Provide a statement when requested by Vocus
setting out the number of permitted users within
Subscriber's organization in the UK.
C. This Section 1.0 sets forth the terms and condition s governing
Vocus' provision and Subscriber's use of Vocus' information
distribution service currently known as PRWeb (the "PRWeb
Service") and only applies if such service is listed on the Cover
Page, or is part of a suite of purchased services, in either case, the
PRWeb Service shall be considered part of the Service.
(i) Subscriber and not Vocus is responsible for the content
and accuracy of all news copy and other information submitted
by Subscriber to Vocus for distribution via the PRWeb Service
(the "PRWeb Materials") and Vocus is not responsible for
verifying facts contained in any PRWeb Materials. All
PRWeb Materials must follow the PRWeb Service editorial
guidelines which can be found on the PRWeb Service web site
and are subject to change at any time at Vocus' sole discretion.
(ii) Vocus reserves the right in its reasonable discretion to (a)
reject or edit PRWeb Materials (such editing to be done
collaboratively with Subscriber); and (b) remove any news
release from its web site, cease distribution of any news release
or reject any news release. Subscriber acknowledges that re-
distribution of news releases is beyond Vocus' control, and
accordingly, Vocus is not obligated to remove PRWeb
Materials from sites outside of Vocus' PRWeb network.
(iii) If there are errors in the dissemination of PRWeb
Materials by Vocus, Vocus shall use reasonable efforts to
correct such errors promptly upon Subscriber's notice, without
additional charge, and such obligation to correct shall
constitute the sole liability of V ocus in this regard.
(iv) All PRWeb Materials submitted by Subscriber to Vocus
must contain a Subscriber contact name, phone number and e -
mail address that can be verified by Vocus.
(v) Vocus does not warrant specific placement of any news
release nor pick up by third parties of any news release on its
wire, but will deliver a news release via online distribution
methods to make such content available to be repurposed by
third parties who discover the content at various Internet
locations, both intended and unintended.
(vi) Subscriber shall not query, spider or access any PRWeb
Service systems without the express written consent of Vocus.
D. This Section 1.D sets forth the terms and conditions governing
Vocus' provision and Subscriber's use ofVocus' Facebook
applications (the "Facebook Applications") and only applies if such
service (which may be referred to as North Social) is listed on the
Cover Page, or is part of a suite of purchased services, in either
case, the Facebook Applications shall be considered part of the
Service.
(i) Vocus will provide Subscriber with applications that can
be used to support Subscriber's marketing programs on
Facebook. Vocus does not endorse nor accept any
responsibility for the contents of or Subscriber's use of the
Facebook site. Vocus makes no represe ntation or warranty,
express or implied, regarding the origin, accuracy,
licenseability, correctness or completeness of any information
supplied by Subscriber, Facebook or others not affiliated with
Vocus.
(ii) Subscriber agrees to be bound by any terms o f use
presented by Facebook.
(iii) Abuse or excessively frequent requests to access or use
Facebook Applications, may result, in Vocus' sole discretion,
in the suspension or termination of Subscriber's access to the
Facebook Applications.
(iv) Subscriber grants Vocus and its affiliates the non -
exclusive right and license to use captured images and other
data from Subscriber's Facebook page(s) or profile(s) solely
for use in providing the Service. In addition, by setting
Subscriber pages to be shared publ icly, Subscriber
acknowledges that third parties and other individuals will view
and share Subscriber's content.
(v) Vocus reserves the right in its reasonable discretion to
immediately disable Subscriber's Facebook Applications if
Subscriber's bandwidth usage in relation to the Facebook
Applications significantly exceeds the average bandwidth
usage of other Facebook Application customers.
E. This Section 1.E sets forth the terms and conditions governing
Vocus' provision and Subscriber's use of Vocus' service linking
information sources to reporters and bloggers currently known as
HARO or HelpAReporterOut ("HARO") and only applies if such
service is listed on the Cover Page , or is part of a suite of purchased
services, in either case, HARO shall be considered part of the
Service.
(i) There are three types of memberships in HARO:
Journalist Members, Source Members and Sponsors. The
scope of your access to the site is dependent upon the type of
member you are. Journalist Members log onto the Journalist
home page and post a query ("HARO Query") which is given
an anonymous email address. Source Members receive email
listings of HARO Queries submitted by Journalist Members. If
Subscriberfe
Vocus / '
a Source Member has relevant information which he or she
believes, in good faith, can assist the Journalist Member with
regard to the specific HARO Query, then the Source Member
may provide that information in response. The Source Member
may not respond if the information is not in specific response
to the HARO Query and the Source Member may not utilize
any information contained within the HARO Query for any
other purpose. Sponsor Members: To become a member you
must purchase advertisement spots that will appear in a HARO
email.
(ii) Source Members may forward HARO Queries to others,
but Source Members shall not post HARO Queries on blogs,
web sites or any similar venue. Subscriber must not harvest
Journalist Member email addresses for any reason.
(iii) Vocus does not represent or warrant any information
regarding the identity of any Journalist or Source Member with
whom you may interact in the course of using the Service.
Additionally, Vocus does not verify the authenticity of any
data which Journalist or Source Members provide about
themselves or relationships such individuals may describe.
Subscriber shall not falsely state, impersonate, or otherwise
misrepresent its identity, including but not limited to the use of
a pseudonym in posting or responding t o HARO Queries.
(iv) Vocus is not liable for the deletion, corruption or failure to
post, store and/or forward any messages or other content
(and/or to do so in a timely manner), including without
limitation HARO Queries maintained or transmitted by the
Service.
F. This Section 1.F sets forth the terms and conditions governing
Vocus' provision and Subscriber's use of Vocus' email distribution
system (the "Email Marketing Service") currently known as
iContact, and only applies if such service is listed on th e Cover
Page, or is part of a suite of purchased services, in either case, the
Email Marketing Service shall be considered part of the Service.
The Email Marketing Service allows Subscriber to electronically
distribute content to Subscriber's contacts, each of whom must
have consented previously to the receipt of such content ("Email
Marketing Recipients"). While Subscriber uses the Service to assist
with the transmittal of content to its Email Marketing Recipients,
Subscriber acknowledges that Vocus does not actually send
Subscriber content to Email Marketing Recipients on Subscriber's
behalf. Vocus solely provides the platform for Subscriber to send
email distribution.
(i) The total number of emails per month that may be sent by
Subscriber cannot exceed six (6) times Subscriber's level limit.
Such emails must be sent during the subscription term set forth
in the Cover Page opposite such service.
(ii) Subscriber acknowledges that from time to time, delivery
of email messages sent using the Service may be blocked or
prevented at destination email servers. Subscriber's payment
obligation set forth herein continues regardless of whether
delivery of such email messages is prevented or blocked.
(iii) Each email message that is sent using the Email
Marketing Service must conform with the policies listed
below, contain an "unsubscribe" link that allows Email
Marketing Recipients to remove themselves from Subscriber's
mailing list, and include a link to the following policies of
Vocus' subsidiary, iContact LLC (as may be updated from
time to time):
• http://ww.icontact.com/anti-spam-policy
• http://www.icontact.com/permission-email-
marketing#prohibited
(iv) Subscriber agrees that it will not remove, disable, modify
or attempt to remove, disable or modify either link. Further,
each email message may contain an automatic identifying
footer such as "Powered by iContact." Except as otherwise
expressly permitted in writing by Vocus, Subscriber agrees
that it will not remove, disable or modify or attempt to remove,
disable or modify such footer. Subscriber shall not send
messages to any purchased (email) lists, purchased distribution
lists, purchased ne wsgroups, or purchased email addresses.
(v) In connection with the provision of the Email Marketing
Service, Vocus or its affiliates (such affiliates to be considered
"Vocus" herein) may collect personal information about Email
Marketing Recipients. Subscriber is solely responsible for the
accuracy, quality, integrity, legality, reliability, and
appropriateness of all Email Marketing Recipient data
uploaded to the Service, and Subscriber is responsible for
maintaining, securing and storing all such data in acc ordance
with applicable law.
(vi) If the number of Recipients stored in Subscriber's account
exceeds the subscriber level, then Subscriber's access to and
use of the Email Marketing Service, including mail sending,
may be suspended until Subscriber: (a) reduces the number of
Recipients stored in Subscriber's account; or (b) upgrades its
subscriber level to at least equal the number of Email
Marketing Recipients stored in its account. Subscriber may
upgrade (but not downgrade) Subscriber's subscriber level at
any time during the then -current subscription term.
G. No license or other rights in any Vocus technology are granted
to Subscriber hereunder, and all rights not expressly granted to
Subscriber herein are expressly reserved. Subscriber agrees not to
modify, create derivative works of, translate, reverse engineer
decompile, disassemble the Service or otherwise recreate or gain
access to the source code. Furthermore, Subscriber shall not use
the Service or any interface thereto for the purpose of developing a
product or service that provides functionality similar to the Service.
Subscriber
Vocus
H. Subscriber represents to Vocus that Subscriber has valid title or
license to all materials, including but not limited to the PRWeb
Materials if applicable, provided by Subscriber for residence on the
Service (the "Subscriber Materials"). Subscriber Ma terials are and
shall remain the property of Subscriber, who shall retain all
intellectual property rights therein. Subscriber hereby represents
and warrants that Subscriber Materials will not contain any content
that is obscene, libelous, slanderous or o therwise defamatory, false
or misleading or that violates any copyright, right of privacy or
publicity or other right of any person or party. Subscriber hereby
grants to Vocus a non -exclusive, royalty -free license to use, copy,
distribute, perform, display and prepare derivative works of the
Subscriber Materials solely for the purpose of providing the
Service. Vocus reserves the right to remove Subscriber Materials
or other information and accounts containing any information that
it determines in its sole discretion are unlawful, offensive,
threatening, libelous, defamatory, pornographic, obscene or
otherwise objectionable or that violate any party's intellectual
property or this Agreement.
I. Subscriber is responsible for all actions taken via Subscriber' s
account for the Service, including protecting the confidentiality of
Subscriber's passwords and user IDs, and maintaining timely
contact information for such account.
J. Vocus uses information collected from Subscriber to provide the
Service. Vocus may share information collected from Subscriber
with its affiliates or third parties that work on Vocus' behalf or
provide services to Vocus in relation to Vocus' provision of the
Service to Subscriber, including but not limited to necessary
hardware, software, networking, storage, and technologies required
to run the Service, and Subscriber hereby consents to such use by
affiliates and third parties.
K. If Subscriber is an advertising or public relations agency,
Subscriber may use the Service on behalfofa c lient, only in
accordance with this Agreement. Subscriber may provide Allowed
Recipients with text or video clips received via the Monitoring
Service only if Subscriber obtains one license to the Monitoring
Service for each client on whose behalf Subscri ber is using the
Service.
2. HOSTING, SERVICE AVAILABILITY AND STORAGE
A. Vocus shall host and maintain the Service on its servers. The
Service will maintain an average availability of no less than 99.5%,
which translates to less than 45 hours of downtime p er annum,
excluding downtime caused by (i) scheduled maintenance
performed between the hours of 12:00 AM and 6:00 AM Eastern
time, (ii) emergency maintenance, (iii) force majeure, and (iv) any
other events beyond Vocus' reasonable control. Downtime is any
time in which a computer on the global Internet is unable to
connect to the Vocus production environment, log into the
application, access application data or file attachments or execute
reporting jobs due to unavailability of the Service.
B. Vocus shall provide up to 500 megabytes (5 gigabytes if
Vocus Public Relations Enterprise Edition is specified on the Cover
Page) ofhosted data storage capacity to Subscriber for purposes of
storing Subscriber Materials on the Service. Subscriber may
purchase additional storage space at any time at Vocus' then -
current price for such storage.
3. BACK-UP AND SUPPORT SERVICES
A. Vocus shall keep offsite back-ups of Subscriber's data.
Restoration of Subscriber's data due to the fault of Subscriber will
be at Subscriber's expense and if due to the fault of Vocus, at
Vocus' expense.
B. During the term of this Agreement, Vocus shall provide
technical support to Subscriber by providing Subscriber with
access to a member of the Vocus support services staff via a
telephone help line or email, which support staff member will
consult with Subscriber for a reasonable amount of time during the
hours of 8:00 AM and 8:00 PM Eastern time, Monday through
Friday (unless otherwise set forth on the Cover Page) to assist
Subscriber with troubleshooting, error correction and use of the
Service.
C. Any professional services or custom services purchased by
Subscriber shall be used by Subscriber within the longest
subscription term of any other service listed on the Cover Page, or
ifno other service is listed on the Cover Page, then within
Subscriber's then current subscription term.
4. FEES
A. Subscriber shall pay the fees set forth on the Cover Page in
accordance with the payment terms set forth on the Cover Page or
upon signing of this Agreement ifno such t erms are contained on
the Cover Page. Any payment not received from Subscriber by the
due date will accrue late charges at the rate of 1.5% of the
outstanding balance per month, or at the maximum rate permitted
by law, whichever is lower, from the date su ch payment was due
until the date paid.
B. If Subscriber's account is 30 days or more overdue, in addition
to any of its other rights or remedies, Vocus reserves the right to
suspend Subscriber's access to the Service, without liability to
Subscriber, until such amounts are paid in full.
C. Prices set forth on the Cover Page do not include taxes.
Unless collected and remitted by Vocus (as indicated on the
invoice presented to Subscriber by Vocus), Subscriber is
responsible for payment of all taxes due to a gover nmental
authority, if any, except for taxes imposed on Vocus' net income.
Subscriber shall provide to Vocus any certificate of exemption or
similar document required to exempt any transaction under this
Agreement from sales tax or other tax liability.
Subscriber
Vocus 031
5. NONDISCLOSURE
A. "Confidential Information" means any and all information,
which is ofa confidential, proprietary or trade secret nature that is
furnished or disclosed by one party to the other party under this
Agreement. Without limiting the generality of the foregoing,
Confidential Information includes the specific business terms of
this Agreement, Subscriber Materials, and any other information
that is marked as "Confidential," "Proprietary," "Trade Secret," or
in some other manner to indicate it is of confidential, proprietary or
trade secret nature.
B. Confidential Information will remain the property ofthe
disclosing party. The r eceiving party agrees: (i) to hold the
Confidential Information in strict confidence; (ii) to limit disclosure
of the Confidential Information to the receiving party's own
employees, agents or authorized consultants having a need to know
the Confidential Information for the purposes of this Agreement;
(iii) not to disclose any Confidential Information to any third party;
(iv) to use the Confidential Information solely in accordance with
the terms of this Agreement in order to carry out its obligations or
exercise its rights under this Agreement; and (v) to notify the
disclosing party promptly of any unauthorized use or disclosu re of
the Confidential Information and to cooperate with the disclosing
party in every reasonable way to cease such unauthorized use or
disclosure.
C. The obligations under this Section 5 will not apply to
information that the receiving party can demonstrate: (i) at the time
of disclosure is generally available to the public or after disclosure
becomes generally available to the public through no breach of
agreement or other wrongful act by the receiving party; (ii) is
independently developed by the receiving party without regard to
the Confidential Information of the other party; or (iii) is required
to be disclosed by law or order ofa court of competent jurisdiction
or regulatory authority, provided that the receiving party shall
attempt to furnish prompt written notice of such required disclosure
and reasonably cooperate with the disclosing party, at the
disclosing party's expense, in any effort made by the disclosing
party to seek a protective order or other appropriate protection of its
Confidential Information.
D. The parties agree that any breach of this Section 5 may cause
the disclosing party substantial and irreparable damages; therefore,
if the receiving party discloses or uses (or threatens to disclose or
use) any Confidential Information of the disclosing party in breach
of this Section 5, the disclosing party shall have the right, in
addition to any other remedies available to it, to seek injunctive and
equitable relief.
6. WARRANTIES
A. Vocus represents and warrants that the Service will be
available to Subscriber and perform substantially in accordance
with the on-line help documentation and the service level standards
set forth in Section 2.A of this Agreement.
B. Each party represents and warrants that the undersigned
individual has full authority to (i) execute this Agreement on behalf
of his/her respective party, and (ii) bind his/her respective party to
this Agreement.
C. THE FOREGOING WARRANTIES ARE IN LIEU OF
ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND TITLE (INCLUDING NON -
INFRINGEMENT), AND ANY AND ALL IMPLIED
WARRANTIES ARISING FROM STATUTE, COURSE OF
DEALING, COURSE OF PERFORMANCE OR USAGE OF
TRADE.
7. INDEMNIFICATION
A. Vocus will indemnify, defend and hold Subscriber harmless
against any claim or demand by a third party, including without
limitation reasonable attorney's fees, alleging that the Service
infringes any intellectual property right under the laws of the
United States ofa third party. Vocus' indemnification obligation
does not cover third party claims arising from: (i) modifications to
the Service by anyone other than Vocus or its authorized agents
and contractors; (ii) use of the Service by Subscriber in
combination with other software or equipment not provided by
Vocus where the Service, but for such combination, would not be
infringing; or (iii) Subscriber's failure to use the Service in
accordance with the terms and conditions in this Agreement.
B. Subscriber will indemnify, defend and hold Vocus and its
subsidiaries, affiliates, officers, directors and employees harmless
against any claim or demand by a third party, including without
limitation reasonable attorney's fees, alleging that any Subscriber
Material infringes any intellectual property rights ofa third party,
or due to Subscriber's violation of privacy or spamming laws or
regulations.
C. Indemnification by a party hereunder is conditioned upon the
following: (i) the indemnitee promptly notifying the other party of
any claim; (ii) the indemnitor having sole control of the defense
and all related settlement negotiations; and (iii) the indemnitee
cooperating, at the indemnitor's expense, in the defense and
furnishing the indemnitor with all related evidence in its control.
D. If a claim regarding the Service and alleging infringement is
brought or is likely, in Vocus' sole opinion, to be brought, Vocus
may, at its sole option and expense (i) obtain the right for
Subscriber to continue using the Service; (ii) replace or modify the
Service so that it becomes non -infringing; or (iii) upon notice to
Subscriber, terminate this Agreement or Subscriber's use of the
Service or any portion thereof, provided that Vocus promptly
refunds to Subscriber the prorated portion of any pre -paid annual
subscription fees paid hereunder.
Subscriber
Vocus
8. LIMITATION OF LIABILITY
A. Subscriber acknowledges that it alone is responsible for the
results obtained from its use of the Service, including without
limitation the completeness, accuracy and content of such results.
If any such results are inaccurate or incomplete solely due to any
defect in the Service, Subscriber's exclusive remedy and Vocus'
sole obligation shall be to correct or modify the Service at no
additional charge to Subscriber.
B. The Service's web site may contain hyperlinks to Web sites
controlled by parties other than Vocus. Vocus is not responsible
for and does not endorse or accept any responsibility over the
content or use of such Web sites.
C. Except for the indemnification obligations set forth in Section
7, a material breach of the co nfidentiality provisions set forth in
Section 5, or claims related to personal injury or property damage
caused solely by Vocus' negligence or willful misconduct, Vocus'
entire liability and Subscriber's exclusive remedy for damages for
any claims arising under or in connection with this Agreement,
regardless of the cause of action, whether in contract or in tort
(including without limitation, breach of warranty and negligence
claims) shall be limited to Subscriber's actual direct da mages, not
to exceed the amounts actually paid by Subscriber under this
Agreement during the twelve months immediately preceding the
month in which the cause of action arose.
D. IN NO EVENT SHALL EI THER PARTY HAVE ANY
LIABILITY TO THE OTH ER PARTY FOR ANY CLA IMS
OR DEMANDS OF THIRD PARTIES (OTHER THAN
THOSE THIRD PARTY CLAIMS COVERED BY SECTION
7) OR ANY LOST PROFITS, LOSS OF BUSINESS, LOSS OF
USE, LOST SAVINGS OR OTHER CONSEQUENTIAL,
SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR
PUNITIVE DAMAGES, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
9. TERM AND TERMINATION
A. The term ofthis Agreement shall be the subscription term set
forth on the Cover Page unless terminated earlier in accordance
with this Section 9 or otherwise renewed for an additional term in a
writing signed by both parties. Any such renewal shall be at
Vocus' then -current fees which Subscriber shall pay no later than
30 days after receipt of an invoice by Subscriber unless otherwise
agreed to by the parties in writing.
B. If either party believes that the other party h as failed in any
material respect to perform its obligations under this Agreement,
then that party may provide written notice to the breaching party
describing the alleged failure in reasonable detail. If the breac hing
party does not cure or begin to cure the material failure within 30
calendar days after receiving such written notice, then the non -
breaching party may terminate this Agreement by wri tten notice to
the breaching party. Termination ofthis Agreement will be in
addition to, and not in lieu of, other remedies avai Table to the
terminating party. Upon such termination by Subscriber, Vocus
agrees to promptly refund to Subscriber a prorated portion of any
prepaid annual subscription fees paid hereunder.
C. Within 30 days after the expiration or tenni nation of this
Agreement for any reason, the receiving party must destroy the
original and all copies (including partial copies) of all Conf idential
Information of the disclosing party.
D. The obligations of Sections 1.A(i) and (ii), 1.G, 1.H and 1.1, 5
(Nondisclosure), 7 (Indemnification), 8 (Limitation of Liability),
10 (Governing Law and Disputes), and 11 (General) will survive
the expiration or termination of this Agreement.
10. GOVERNING LAW AND DISPUTES
A. This Agreement will be governed and construed in accor dance
with the laws of the State of Maryland exclusive of its choice of
law provisions and WITHOUT THE APPLICATION OF THE
UNIFORM COMPUTER INFORMATION TRANSACTIONS
ACT. Any suit hereunder will be brought in the federal or state
courts located in the State of Maryland, and Subscriber submits to
the personal jurisdiction thereof. The parties agree that the United
Nations Convention on Contracts for the International Sale of
Goods shall not apply to this Agreement.
B. Both parties agree to comply fully with all relevant laws,
including the export laws and regulations relating to use of the
Service in its place of business, regardless of country or
jurisdiction. However, Subscriber's use of the data supplied by the
Service is at Subscriber's own risk. Without limiting the
foregoing, Subscriber will be solely responsible for usage of
contact information (e.g. names, phone and facsimile numbers, e -
mail addresses and physical addresses) in compliance with relevant
laws and regulations. Subscriber may not: (i) send spam or
unsolicited messages in violation of relevant laws, including
concerning privacy, data protection, telemarketing, the CAN -
SPAM Act or other commercial email laws, wireless domain
suppression lists, and "Do -Not -Call" lists; (ii) send or store
infringing, obscene, threatening, harassing, libelous, or otherwise
unlawful or tortious material, including material harmful to
children or violate third party privacy rights; or (iii) send or store
material containing malicious code, including, without limitat ion,
software viruses, worms, Trojan horses or other harmful computer
code, files, scripts, agents or programs. Vocus also reserves the
right to use or disclose information provided if required by law or
if Vocus reasonably believes that use or disclosure is necessary to
protect Vocus' rights and/or to comply with a judicial proceeding,
court order, or legal process.
C. Except for actions for non-payment, breach of confidentiality
or indemnities under Section 7, no action, regardless of form,
arising out of or related to this Agreement may be brought by either
party more than 2 years after the accrual of the cause ofaction.
Subscriber Y6r/
Vocus
11. GENERAL
A. Any notice or other communication required or permitted to be
made or given by either party pursuant to this Agreement will be in
writing, in English, and will be deemed to have been duly given: (i)
five business days after the date of mailing if sent by registered or
certified U.S. mail, postage prepaid, with return receipt requested;
(ii) when delivered if delivered personally or (iii) one business day
after being sent by express courier service. All notices will be sent
to the other party at its address as set forth on the Cover Page (in
the case of Vocus, "Attn: Legal Department") or at such other
address as such party will have specified in a notice given in
accordance with this Section 11.A. In addition, Vocus may provide
notices to Subscriber electronically either via the Service or via any
email address provided by Subscriber in connection with
Subscriber's account.
B. Subscriber may not assign this Agreement without the written
consent of Vocus, which consent shall not be unreasonably
withheld or delayed.
C. Subject to Section 11.B, this Agreement will be binding upon
and inure to the benefit of the parties, their successors and
permitted assigns.
D. The section headings contained herein are for reference only
and shall not be considered substantive parts of this Agreement.
E. If Subscriber is the U.S. Government or any agency or
instrumentality thereof, the software provided pursuant to this
Agreement is delivered with RESTRICTED RIGHTS only. The
use, duplication, or disclosure by the Governmen t is subject to
restrictions as set forth in FAR 52.227 -19 Commercial Computer
Software—Restricted Rights or DFAR 252.227-7013 Rights in
Technical Data and Computer Software.
F. The provisions of this Agreement shall be deemed severable,
and the unenforceability of any one or more provisions shall not
affect the enforceability of any other provisions. In addition, if any
provision of this Agreement, for any reason, is declared to be
unenforceable, the parties shall substitute an enforceable prov ision
that, to the maximum extent possible in accordance with applicable
law, preserves the original intentions and economic positions of the
parties.
G. No failure or delay by either party in exercising any right,
power or remedy will operate as a waiver of such right, power or
remedy, and no waiver will be effective unless it is in writing and
signed by the waiving party. If either party waives any right, power
or remedy, such waiver will not waive any successive or other
right, power or remedy the party may have unde r this Agreement.
H. Vocus and Subscriber are independent contractors and this
Agreement will not establish any relationship of partnership, joint
venture, employment, franchise or agency between the parties.
I. This Agreement represents the entire agreement bet ween
Subscriber and Vocus with respect to the subject matter,
superseding all previous oral or written communications,
representations or agreements regarding such subject matter,
including but not limited to any purchase order forms submitted by
Subscriber (unless such purchase order is signed by Vocus). This
Agreement may be modified only by a writing signed by both
parties.
Subscribef/'r/
Vocus