Fishbowl Terms and Conditions
These Master Terms and Conditions (these “MTC”) govern all acquisition and use of Services from Fishbowl, Inc., (“Fishbowl”) by the entity entering into an Order Form (such entity, “Client”).
1.1 “Client Content” means any data, information or material that Client delivers, or causes to be delivered, to Fishbowl, which may include Consumer Data.
1.2 “Consumer” means an individual who opts-in to receive marketing communications from Client, in a manner sufficient to comply with applicable law.
1.3 “Consumer Data” means the personal information provided by Consumers. Client shall, on all of its websites and applications from which Consumer Data may be obtained, provide, in compliance with applicable laws, rules, and regulations, complete and accurate notice of its collection, use and disclosure practices with respect to Consumer Data (“Privacy Notices”).
1.4 “Documentation” means the written specifications and user instructions provided by Fishbowl regarding the Services, and explicitly does not include informal communications or advertisements.
1.5 “Fishbowl Materials” means all software, templates, Documentation, third party-sourced data, and other intellectual property (but not Client Content) used by Fishbowl to provide the Services.
1.6 “Order Form” means a document signed by both Client and Fishbowl that specifies Services to be provided or made available to Client by Fishbowl. An Order Form may also be labeled a “Statement of Work” or “SOW.”
1.7 “Professional Services” means Services that Fishbowl provides to Client, that are not Subscription Services. Professional Services may be offered (a) as part of a defined package and subject to recurring billing; or (b) on an ad hoc basis and billed per the relevant Order Form on which they are ordered.
1.8 “Services” means all services provided by Fishbowl to Client, including Subscription Services and Professional Services.
1.9 “Subscription” means Client receiving access to one or more Services for a defined period, as specified on an Order Form.
1.10 “Subscription Services” means services that Fishbowl makes available to Client as part of a Subscription.
1.11 “Term” means the period during which an Order Form is in effect, as specified in the Order Form, subject to renewal or termination as specified below.
1.12 “Value-Added Content” means the analytical and historical information regarding Consumers or Client that is developed or collected by Fishbowl in connection with the Services (such as email open rates, effectiveness of offers, and offer redemption rates), but which is not Consumer Data.
2 Legal Compliance.
Both Client and Fishbowl will comply with all applicable federal, state and local laws, rules, and regulations (including common carrier communication tariffs) in their performance or exercise of their rights hereunder. For clarity, it is understood that Client is responsible for ensuring that its use of the Services complies with applicable laws (including those of jurisdictions outside the United States, if Client accesses or uses the Services outside the United States).
All charges will be due as specified in the applicable Order Form. Fishbowl’s obligations to Client are conditioned on Client paying Fishbowl timely and in full. Subscription fees are charged for access to the relevant Services, not actual use. Unused access does not carry over to any period after the period in which it accrued. All payments will be made via credit card, ACH, or check, as specified in the relevant Order Form.
3.1 Late Charges; Suspension of Services. Fishbowl may assess a late payment fee of 1½% per month on balances that Client does not pay on time (including as a result of a denied credit card or ACH or NSF check). Fishbowl may immediately suspend its performance hereunder if any payment owed to it by Client remains unpaid more than ten (10) business days after delivery of a past due notice to Client. Fishbowl will not impose interest or suspension if the fees in question are the subject of good faith dispute of which Client has notified Fishbowl and that Client is diligently working to resolve.
3.2 Taxes. Client will pay, or reimburse Fishbowl for, any taxes or similar liabilities levied on the Services or payments made to Fishbowl by Client, excluding taxes or similar liabilities chargeable against Fishbowl’s income or gross receipts.
4 Renewal; Termination.
4.1 Renewal. Subscriptions auto-renew for successive one-year renewal Terms at the end of the then-current Term unless (a) otherwise specified in the relevant Order Form; or (b) either party notifies the other of non-renewal at least 60 days in advance of the expiration of the then-current Term.
4.2 Termination for Breach. Either party may immediately terminate any or all Order Forms, Subscriptions, and/or Statements of Work by written notice to the other party, if the other party: (i) breaches a material obligation, representation, or warranty to the terminating party and fails to cure that breach within thirty (30) days of receiving written notice from the terminating party; or (ii) terminates or suspends its business.
4.3 Return of Materials. After the expiration of all applicable regulatory requirements, Fishbowl will deliver or make available to Client a copy of the Consumer Data in a commonly accessible data format. Upon Fishbowl’s receipt of all amounts owed to it by Client, Fishbowl will deliver or make available to Client a copy of the Value-Added Content. If Client fails to pay all undisputed amounts owed to Fishbowl within sixty (60) days after termination or expiration, and any disputed amounts within fifteen (15) days after the final resolution of such dispute, Client will no longer have any rights to the Value-Added Content and Fishbowl may remove from its systems and archive or destroy any Value-Added Content. Except as provided above, each party will, on termination or expiration, immediately return to the other party all papers, materials and other properties of the other party.
4.4 Survival. Any obligations accrued prior to termination, such as payment obligations as described in Section 3, and the following sections will continue in full force and effect after an Order Form has expired or been terminated: 1, 3, 4.3, 4.4, 5.3, and 6 through 10.
5.1 Fishbowl’s Warranties. Fishbowl warrants that (a) the Professional Services will be performed by qualified personnel in a commercially reasonable manner materially in accordance with any requirements or specifications included in any Order Form; and (b) Subscription Services will conform to the applicable Documentation. Fishbowl further warrants that it will use reasonable efforts to minimize the duration and impact of any unscheduled maintenance on access to or use of any Subscription Services. Client’s sole remedy for any breach of these warranties shall be prompt re-performance of the relevant Services by Fishbowl, or if such re-performance is not promptly and successfully completed, a refund of any fees paid in respect of such Services. Client is responsible for the accuracy of materials and information that it provides to Fishbowl or sends via Fishbowl’s systems pursuant to a Subscription.
5.2 Client’s Warranties. Client warrants that it will maintain during the Term all necessary rights, licenses, consents, waivers and permissions from Consumers, advertisers, and others to allow Fishbowl to manage Consumer Data and otherwise provide Services on Client’s behalf and to use any Consumer Data or Client Content in accordance with these MTC and any Order Form.
5.3 Disclaimer. THE PARTIES ACKNOWLEDGE THAT THE FOREGOING WARRANTIES ARE MADE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS AND IMPLIED.
6 Limitation of Liability. EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, (A) NEITHER PARTY NOR ITS RESPECTIVE LICENSORS OR SUPPLIERS (INCLUDING SERVICE PROVIDERS) WILL BE LIABLE FOR ANY DAMAGES HEREUNDER OTHER THAN DIRECT DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE FAILURE OF ESSENTIAL PURPOSE OF ANY EXCLUSIVE OR LIMITED REMEDY; AND (B) IN NO EVENT WILL THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY NOR ITS RESPECTIVE LICENSORS OR SUPPLIERS (INCLUDING SERVICE PROVIDERS) EXCEED THE FEES THAT CLIENT PAID OR OWED TO FISHBOWL DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE CIRCUMSTANCES GIVING RISE TO THE APPLICABLE CAUSE OF ACTION.
7.1 Each party (“Indemnitor”) will indemnify and defend the other party (“Indemnitee”), its respective officers, directors, employees, agents, heirs, successors in interest, and affiliated entities (each an “Indemnified Party”) from and against any and all liabilities, losses, damages, claims, and expenses, including reasonable legal fees awarded to a third party (or agreed to in a settlement with a third party) to the extent arising out of third party claims (i) alleging that materials provided by Indemnitor, when used as authorized by Indemnitor, infringe that third party’s proprietary rights; or (ii) resulting from Indemnitee’s violation of any applicable law, rule, or regulation as a result of Indemnitor’s wrongful actions or inactions. Indemnitee will notify Indemnitor promptly about any claim for which any Indemnified Party seeks indemnification (each, a “Claim”), will give Indemnitor sole control of the defense and settlement of the Claim, and will cooperate with Indemnitor in connection with such defense and settlement. Indemnitor may defend or settle any Claim, in its sole discretion, with counsel of its own choosing, provided that any settlement includes a full release of all Indemnified Parties.
7.2 Indemnitor will have no obligation to indemnify any Indemnified Party to the extent that the Claim results from such Indemnified Party’s (i) misuse or modification of the materials and/or information that are the subject of the claim (the “Subject Materials”); (ii) failure to use Indemnitor’s corrections or enhancements to the Subject Materials that have been made available to Indemnitee, or cease use of the Subject Materials once the authorization of Indemnitee to use the Subject Materials has ended; (iii) use of the Subject Materials in combination with any materials not provided by Indemnitor; or (iv) operation or use of the Subject Materials in a manner not authorized by the Indemnitor.
8 Intellectual Property.
8.1 Retained Ownership. Fishbowl Materials are and will remain Fishbowl’s property. Client Content and Consumer Data are and will remain Client’s property. Fishbowl shall have the perpetual, non-exclusive right, royalty-free right and license to use the Client Content and Consumer Data in connection with its business and this Agreement, subject to any applicable confidentiality restrictions herein and provided that no use by Fishbowl of such Client Content or Consumer Data, other than in the performance of Services hereunder, will associate or identify Client with such use by Fishbowl of Client Content or Consumer Data, except as required by law. Any restrictions herein on Consumer Data will not apply to information Fishbowl obtains about a Consumer in connection with its delivery of services to another client or through means unrelated to the services provided to Client hereunder.
8.2 Value-Added Content. Upon payment in full of all associated fees owed to Fishbowl, Fishbowl hereby grants to Client a perpetual, non-exclusive, royalty-free, transferable license to use the Value-Added Content in any way, other than the Fishbowl Materials that may be incorporated into the Value-Added Content. If Fishbowl incorporates the Fishbowl Materials into the Value-Added Content, Fishbowl grants to Client a perpetual, non-exclusive, royalty-free, non-transferable license to use those Fishbowl Materials as incorporated into such Value-Added Content as delivered to Client.
9 Confidential Information.
9.1 Confidential Information. A party (“Owner”) may give to the other party (“Recipient”) access to its confidential information, directly or indirectly, in writing, by inspection, or orally. All information that the parties exchange will be considered “Confidential Information” unless Owner tells Recipient that the information is not Confidential Information, or the information otherwise fits into one of the following exceptions. Confidential Information does not include any information which (i) is publicly known other than by Recipient’s action or inaction; (ii) Recipient already possesses, or receives, without restriction; or (iii) Recipient can show it independently developed. By disclosing Confidential Information, Owner does not grant Recipient any express or implied right to the Confidential Information.
9.2 Disclosure and Use. For so long as Owner’s Confidential Information remains Confidential Information, the Recipient will (i) not disclose or use any of the Confidential Information other than as authorized hereunder; (ii) protect the Confidential Information, using the same measures that Recipient takes to protect its own Confidential Information; and (iii) notify Owner immediately if Recipient discovers any unauthorized disclosure of such Confidential Information.
9.3 Obligations on Termination. On termination of the applicable Order Forms, each party will destroy all copies of the other party’s Confidential Information and certify that destruction, except each party may retain copies (i) as required for compliance and enforcement purposes; (ii) contained in system backups, archives, or otherwise relatively inaccessible; and (iii) as otherwise authorized herein, provided that any such retained copies remain subject to these protections in perpetuity, even after termination or expiration of these MTC or any Order Form.
9.4 Data Security. Fishbowl will maintain reasonable administrative, physical, and technical safeguards for protection of Consumer Data within its control, as described in the Documentation. Client is responsible for the security of its passwords, user names, and other methods Client uses to access the Services (collectively, “Credentials”), and is responsible for all use of the Credentials.
9.5 Unassociated Data. Fishbowl is authorized to use aggregated and anonymized Consumer Data, data contained in the Client Content that does not contain personal information or otherwise identify Client or a Consumer, and results from the use of its Services (“Unassociated Data”) for any purpose, including benchmarking and statistical analysis, and may share Unassociated Data with third parties for their use. Fishbowl will not disclose any Unassociated Data or information that could identify the Client or a Consumer as being associated with such Unassociated Data.
10.1 Governing Law. These MTC and all Order Forms will be governed by the laws of the Commonwealth of Virginia without regard to its choice-of-laws provisions or the application of the Uniform Computer Information Transactions Act or the UN Convention on Contracts for the International Sale of Goods. The parties consent to personal jurisdiction in the Commonwealth of Virginia and the exclusive jurisdiction and venue of the federal or state courts serving Alexandria, Virginia for all claims and disputes arising under these MTC or any Order Form or otherwise related to the Services.
10.2 Force Majeure. A party will not be liable to the other should its performance be delayed by circumstances beyond its reasonable control (“Force Majeure Event”), provided that the affected party uses its best commercially reasonable efforts to resume performance promptly.
10.3 Integration and Precedence. These MTC and the Order Forms which incorporate them, constitute the entire agreement between the parties regarding those topics covered in these MTC and any Order Forms. If there is a conflict between these MTC and an Order Form, the Order Form will supersede these MTC, but only with respect to such Order Form.
10.4 Independent Contractor. Each of the parties to these MTC is an independent contractor and neither is an agent, distributor or representative of the other. Neither party will represent itself as an agent of the other or assume or create any obligation in the name of the other.
10.5 Non-recruitment. During the Term and for a period of one (1) year thereafter neither party may hire any employee of the other or solicit an employee to leave the employ of the other party.
10.6 Assignment. A party may not assign or otherwise transfer its rights or obligations under these MTC or any Order Form without the prior written consent of the other party, except in connection with a merger, acquisition, or transfer of all or substantially all of such party’s assets.
10.7 Miscellaneous. All notices hereunder must be in writing to the other party at its designated address via nationally-known express delivery and deemed given the next business day after actual delivery. No waiver of any right or remedy on one occasion will be deemed a waiver of that right or remedy on any other occasion. If a provision of these MTC or any Order Form hereunder is declared or found to be unenforceable or void, that provision will be void but all others will remain in force. Fishbowl may update these MTC at any time, provided that any such updates are applicable to Fishbowl’s clients generally and not specific to Client. All other amendments must be in writing and signed by both parties.
11 Product-specific Provisions.
11.1 Email & SMS.
11.1.1 Compliance. Without limiting the requirements of Section 2, the parties will comply with the Canadian Anti-Spam Law (CASL), the U.S. Children’s Online Privacy Protection Act of 1998, (COPPA), the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM), the rules and regulations of the Federal Communications Commission (FCC) and Federal Trade Commission (FTC) (including the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising (16 CFR Part 255)), and all other national and applicable state laws and regulations such as the Michigan Children’s Protection Registry Act of 2004 and the Utah Child Protection Registry Act of 2005, each as amended.
11.1.2 Suspension. Fishbowl may immediately suspend Client’s ability to send messages through Fishbowl’s systems if Fishbowl determines in good faith that Client has sent or is sending messages that (i) are unwanted or offensive; (ii) harm or exploit minors in any way, including requesting personal or other information; (iii) are unlawful, harmful, defamatory, profane, obscene, libelous, hateful or otherwise offensive; (iv) are racially, ethnically or otherwise objectionable; (v) are obscene, pornographic, indecent or otherwise contain offensive materials (whether in visual, textual or audio format); (vi) discuss, incite or otherwise solicit illegal activity; (vii) promote physical harm or injury against any group or individual, or promote any act of cruelty to animals; or (viii) violate or infringe on the rights of any individual or other person, including, but not limited to intellectual property, publicity or privacy rights. Client agrees to not undertake any of the activities described above. Fishbowl will promptly notify Client of the basis for any suspension hereunder, and will reinstate Client’s access promptly upon Client rectifying the basis for the suspension. If Fishbowl suspends Client’s access multiple times under this Section or due to an egregious violation by Client, Fishbowl may terminate the relevant Order Form for Client’s breach.
11.1.3 List Collection Guidelines. Fishbowl will transmit messages only to users who have opted-in to receive messages from you through the Services (“Customers”). “Opt-in” means making an affirmative action or statement consenting to receive messages from you though the Services. Examples of ways Customers may opt-in include: (i) completing a sign-up form; (ii) clicking a “yes” checkbox on a web page, or (iii) providing a business card in a receptacle that clearly communicates to the Customer that they are opting to receive email communications from you by supplying their business card. You may only send messages through Fishbowl to Customers that have opted-in within the prior 6 months or to whom you have sent a message in the prior 6 months. You are not allowed to use any purchased, rented or third party lists. Fishbowl may refuse to send messages to individuals that have not, or that Fishbowl reasonably believes have not, opted-in to receive messages from you. Fishbowl reserves the right to request and inspect any or all materials, methods or evidence used in the Opt-in process to ensure that you are complying with relevant regulations and standards.
11.2 POS Integration. Fishbowl supports only those specific “point of sale” (POS) systems specified (including the version(s)) on the then-current Documentation. Fishbowl does not bear responsibility for any changes in technology by the POS vendor, or the inability to retrieve data from the POS system if there are changes to the technology of the POS system.
11.3 Analytics & Consulting Services. Fishbowl will use it commercially reasonable best efforts to achieve the desired results of the Professional Services, but cannot guarantee that any particular results will be achieved.
11.4 Social Media. Client is responsible for ensuring that Fishbowl’s use and management of Client’s social media accounts (Facebook, Twitter, Instagram, etc.) on behalf of Client in accordance with the Documentation is authorized and in compliance with all applicable terms of service. Client should review all of its social media accounts on a regular basis and delete any content or offers it objects to, and provide feedback to Fishbowl in order to help prevent unwanted postings in the future. Client, and not Fishbowl, shall be responsible for the content on all Client social media sites.
11.5 Free or Beta Offerings. Fishbowl may make certain Services available at no charge to Client, such as part of a promotion or for beta testing. It is understood that Fishbowl may change, limit, or terminate any such no-fee Services at any time in its sole discretion.
11.6 Local Offerings. The initial term shall be stated in the Order Form (the “Initial Term”). After completion of the Initial Term, the agreement shall renew for successive terms of thirty (30) days (each a “Renewal Term”) and, unless otherwise stated on the Order Form, either party may cancel the agreement, for any or no reason, by providing at least thirty (30) days written notice to the other party prior to the beginning of a Renewal Term. Any fees incurred during the cancellation period will be billed to Client in full. No pre-paid fees will be refunded.
11.7 Governing Law and Compliance for United Kingdom based Customers. These MTC govern all acquisition and use of Services from Fishbowl Marketing Limited and the Client and all Order Forms will be governed by the laws of England and Wales, excluding the Contracts (Rights of Third Parties) Act 1999. The parties will comply with all applicable government and local laws, regulations and common carrier communication tariffs.