“Agreement” shall mean the combination of the Terms of Service and the signed “Description of Services” between the Client and BusySeed.
“Client” shall mean the purchaser of the Services provided by BusySeed and shall also include any present or former agent, representative, independent contractor, employee, servant, attorney and any entity or person who had an actual or apparent authority to act on the purchaser’s behalf.
“Service” or “Services” shall mean any software or service(s) provided by BusySeed.
- It is the Client’s responsibility to make time to meet with their designated Social Account Manager for the intake meeting.
- The intake meeting allows BusySeed and the Client to mutually agree on the social media objectives, and the brand voice/image.
- If the Client does not make time for the intake meeting, BusySeed will not extend the first month’s term to compensate for the Client’s delay.
- Once the intake meeting has taken place, from then on, the Client has twenty-four (24) hours to deny any requests sent by BusySeed, otherwise, the Client will be deemed to have assented to the request(s).
- Client agrees that BusySeed will not be held responsible for missed posts, comments, reviews, etc.
- Client acknowledges that any increase in sales takes at least three months to achieve.
- By purchasing a BusySeed SeedSocial package, Client grants BusySeed the right to:
- create, access and manage profiles, applications, or websites in Client’s name using BusySeed content, Client’s content, Third Party content, and publicly available information;
- post, at BusySeed’s discretion, content to the profiles, applications, or websites, in Client’s name, including but not limited to content that mentions, discusses, or promotes third parties;
- access, collect, read, analyze, and otherwise use on Client’s behalf the information available on the profiles, applications, or websites in Client’s name; and,
- host, using the resources of BusySeed, the profiles, applications, or websites in the Client’s name.
- As a Client of BusySeed, Client gives BusySeed full rights to all content that Client sends to BusySeed for posting and all content that BusySeed posts on Client’s behalf.
- If Client configures or requests BusySeed to configure the Client’s website or any of the Client’s social media platforms to share or make available certain content to the public, Client is deemed to acknowledge and agree that everyone will have access to such posted content.
- BusySeed reserves the right, at its sole discretion, to take any action deemed necessary with respect to posted content that violates the terms of the Agreement, including, but not limited to, removal of such posted content.
- Client acknowledges and agrees that all ownership, license, intellectual property and other rights and interests in and to the services offered by BusySeed shall remain solely with BusySeed.
- Client is granted a non-exclusive, non-transferable, limited license to access and use the SeedSite.
- Client agrees BusySeed will not be held responsible if the set-up process for the Client’s SeedSite takes longer than two weeks due to domain propagation issues, lack of access to social media information, high volume of new orders, poor communication on behalf of the Client, or other reasons outside BusySeed’s control.
- Client grants BusySeed sole rights and full ownership to all data, files, opt-in emails, analytics, etc.
- Client agrees that if the website domain for Client’s SeedSite was purchased by BusySeed, BusySeed owns said domain; however, the Client has the option to purchase the domain from BusySeed at any time.
- Client agrees that any custom-made modules created by BusySeed are owned by BusySeed and BusySeed can resell the modules unless exclusivity is agreed upon by both the Client and BusySeed.
- Client agrees that Client’s menus, events, and catalogs of products on Client’s SeedSite may be changed up to five times per month, and that any additional changes will entail additional costs.
- Client agrees that if Client requests for their SeedSite to have ecommerce capabilities, BusySeed requires certain information from the Client so that BusySeed may set up the payment processor and ecommerce capabilities, including but not limited to the Client’s banking information, the Client’s tax identification number or social security number (if the Client is a sole proprietor).
- Client agrees that unless the Client declines to receive the following discount, BusySeed will brand the Client’s SeedSite with a link to BusySeed at the footer of Client’s site and in return BusySeed will discount the Client $20.00 every month.
- The SeedSite server may go down occasionally due to unforeseen circumstances or circumstances outside BusySeed’s control, and Client agrees that BusySeed will not be held responsible for such downtime.
- Client acknowledges that Client’s SeedSite will go down for maintenance occasionally, and Client agrees that such downtime will not be held against BusySeed.
- Client acknowledges and agrees that any copyrighted or unlawful data imported from other platforms (data which was uploaded by a third party) will be deleted permanently from BusySeed’s servers and may result in temporary or permanent SeedSite suspension.
- Client acknowledges that SeedSite is a fully automated system, and Client agrees that any changes by the Client without BusySeed’s involvement does not reflect BusySeed’s work and BusySeed cannot be held responsible for any consequences as a result of Client’s changes, including but not limited to damage done to the SeedSite.
- BusySeed does not review or pre-screen the contents of electronic data uploaded or posted to the SeedSite by Client and BusySeed claims no intellectual property rights with respect to said content.
- Client agrees not to reproduce, duplicate, copy, sell, resell or exploit access to its SeedSite, use of the SeedSite, or any portion of the SeedSite, including, but not limited to the HTML, Cascading Style Sheet (“CSS”) or any visual design elements without the express written permission of BusySeed.
- Client agrees not to modify, reverse engineer, adapt or otherwise tamper with the SeedSite or modify another website so as to falsely imply that it is associated with the SeedSite, BusySeed, or any other software or service provided by BusySeed.
- Client agrees not to knowingly use its SeedSite in any manner which may infringe copyright or intellectual property rights or in any manner which is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene, or in violation of the terms of the Agreement.
- Client agrees not to knowingly use its SeedSite to upload, post, host, or transmit unsolicited bulk email “Spam”, short message service “SMS” messages, viruses, self-replicating computer programs “Worms” or any code of a destructive or malicious nature.
- BusySeed reserves the right at any time, and from time to time, to modify or discontinue, temporarily or permanently, any feature associated with the Service, with or without notice, except that BusySeed shall provide Client with 30-days notice of any modification that materially reduces the functionality of the SeedSite. Continued use of the SeedSite following any modification constitutes Client’s acceptance of the modification.
- BusySeed reserves the right to temporarily suspend access to the Service for operational purposes, including, but not limited to, maintenance, repairs or installation of upgrades, and will endeavor to provide no less than two business days notice prior to any such suspension. Such notice shall be provided to the Client in advance through by way of notification within the SeedSite, email or other notification method deemed appropriate by BusySeed. Further, BusySeed shall endeavor to confine planned operational suspensions with a best effort to minimize disruption to the Client, but reserves the ability to temporarily suspend operations without notice at any time to complete necessary repairs. In the event of a temporary suspension, BusySeed will use the same notification methods listed in this section to provide updates as to the nature and duration of any temporary suspension.
- BusySeed stores all SeedSite content on redundant storage servers. The Client may elect to, at a regular interval, replicate all content associated with the subscription to a third party storage service (“Escrow Agent”). The replicated content (“Escrowed Data”) will be held under the terms of a separate agreement exclusively between the Client and the Escrow Agent (“Escrow Agreement”). The Client may also elect to replicate all content associated with the subscription on its own storage device.
- Client grants to BusySeed a non-exclusive, royalty free right during Client’s use of the SeedSite, to use the Client’s information for the sole purpose of performing BusySeed’s obligations under the Agreement in accordance with the terms of the Agreement. Such rights shall include permission for BusySeed to generate and publish aggregate, anonymized reports on system usage and content trends and type, provided they do not result in the publishing of any identifiable Client information
- If the Client cancels or is late on payment of their SeedSite Service with BusySeed, the Client acknowledges and agrees that the SeedSite will be replaced with a placeholder; it is the responsibility of the Client to point the web domain to another server.
- Client acknowledges and agrees that if the Client does not pay for Services three business days after the invoice date, the Client’s SeedSite will be rendered inaccessible, and attempts to navigate to it will redirect users to BusySeed’s website.
- The set-up fee is a onetime only fee, but Service and billing will automatically continue on a month-to-month basis, during which the Client may cancel or change its subscription at any time.
- A valid credit card or eCheck is required for paying accounts, and will remain securely on file to cover monthly recurring charges for service.
- Clients who give BusySeed a check are authorizing BusySeed to make future payments with their routing and account number and to digitally accept checks as eChecks.
- Initial charges for Service, which include the one time set-up fee, the first month’s payment, and any other applicable fees or costs, will be paid in advance of Services being provided by BusySeed to Client.
- BusySeed will attempt to charge Client’s form of payment monthly commencing one month from the date the Client makes the first initial payment.
- Charges not paid by the due date for any reason may result in suspension of Services until full payment is received.
- Suspension of Services for non-payment will not result in a proration of fees and may incur a recouping fee of $25 a week.
Cancellation and Termination of Services
- Client may cancel Client’s Service with BusySeed at any time.
- BusySeed completes the work for a Client’s Services sixty days in advance; thus, BusySeed requires sixty days’ notice for cancellation or Client may be billed for additional months in accordance with Client’s payment plan.
- Clients are required to cancel their Service with BusySeed verbally via telephone and are solely responsible for properly canceling their Service.
- Failure to properly cancel Service will result in BusySeed continuing to provide Services to the Client.
- Failure to properly cancel Service will result in the Client continuing to be charged each month.
- BusySeed in its sole discretion has the right to suspend or terminate Client’s Service and refuse any and all current or future use of BusySeed’s Services for any lawful reason at any time, and termination will result in the deactivation or deletion of Client’s Service or access to Client’s Service.
- BusySeed reserves the right to refuse service to anyone for any lawful reason at any time.
- No refund will be granted for any fee, cost, or advance payment under any circumstances.
- If BusySeed is in any way hindered from providing Services to the Client as a result of actions by the Client (including but not limited to changed credentials or blocked user), the Client is not entitled to a refund.
- Any harassment, threat, or similar conduct towards BusySeed, or towards a third party via Client’s SeedSite, website, or social media platforms, will result in immediate termination of Client’s Service with no refund.
- If the Client decides to prematurely cancel a locked-in subscription, the Client will not be entitled to a refund, and must pay the remaining balance due.
- If the Client decides to cancel and then later retains BusySeed’s Services, prior discounts will not be valid.
- Upon termination of Client’s BusySeed Services, Client retains the right to access and control any profiles, applications, and Client’s content.
- At any time, including upon termination of Client’s use of BusySeed Services, BusySeed may delete, disable, alter, remove, retain, or otherwise dispose of profiles or applications created by BusySeed.
- Cancellation of Services will result in the termination of Services on the day that the cancellation takes place.
- Client agrees to first try in good faith to settle any dispute with BusySeed that may arise out of or relate to the Agreement by negotiation and if that fails, by mediation under the Mediation Rules of the American Arbitration Association or such other process of mediation or dispute resolution procedure on which the parties may agree upon.
- Consent of BusySeed to participate in mediation will be required where the Client fails to raise a good faith dispute to payment prior to initiation of collection proceedings against the Client.
Limitations of Liability
- BusySeed shall not be liable for and Client waives the right to claim any loss, injury, claim, liability or damage of any kind resulting in any way from the Services provided to Client by BusySeed.
- Client agrees that the liability of BusySeed arising out of any claim in any way connected with the Agreement will not exceed the total amount the Client has paid BusySeed pursuant to the Agreement within the six month period before the date the claim arose.
- Client further agrees that BusySeed is not and will not be liable for any special, indirect, incidental, or consequential damages of any kind whatsoever (including without limitation, attorney fees) relating to the Agreement.
- Client agrees that these limitations of liability apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise, whether those damages are foreseeable and whether Client has been advised of the possibility of those damages.
- Each provision of the Agreement that provides for a limitation of liability, disclaimer of damages, or exclusion of damages is to allocate the risks of the Agreement between the parties.
- This allocation is reflected in the pricing offered by BusySeed to Client and is an essential element of the basis of the bargain between the parties.
- Each of these provisions is severable from and independent of all other provisions of the Agreement.
- Client will solely be responsible for any damage and/or loss of content contained in Client’s technology which occurs as a result of Client’s electronic equipment and/or Client’s computer system.
Disclaimer of Warranties
- BusySeed hereby disclaims all warranties of any kind, whether express, implied or statutory, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose, title and non-infringement of third party rights with respect to any services provided by BusySeed.
- BusySeed makes no warranty that its services, when provided to Client in digital or electronic format, will be compatible with the Client computer and/or other equipment, or that these Services will be secure or error free. Nor does BusySeed make any warranty as to any results that may be obtained from the use of the Service.
- BusySeed hereby disclaims all warranties of any kind related to Client’s hardware or software beyond the warranties provided by the manufacturer of Client’s hardware or software.
- Client hereby agrees to indemnify and hold harmless BusySeed and its directors, officers, agents, and employees against any claim, action, proceeding, loss, liability, judgment, obligation, penalty, damage, cost or expense, including attorneys’ fees, which arise from or relate to the following:
- Client’s breach of any obligation stated in the Agreement, or
- Client’s negligent acts or omissions.
- BusySeed shall defend, indemnify and hold Client harmless against any loss, damage or costs (including reasonable attorneys’ fees) in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Client by a third party alleging that the Service, or use of the Service as contemplated hereunder, infringes a copyright, a U.S. patent issued as of the date of final execution of the Agreement, or a trademark of a third party or involves the misappropriation of any trade secret of a third party; provided, however, that Client:
- promptly gives written a notice of the Claim to BusySeed (provided, however, that the failure to so notify shall not relieve BusySeed of its indemnification obligations unless BusySeed can show that it was materially prejudiced by such delay and then only to the extent of such prejudice)
- gives BusySeed sole control of the defense and settlement of the Claim (provided that BusySeed may not settle any Claim unless it unconditionally releases Client of all liability); and,
- provides to BusySeed, at BusySeed’s cost, all reasonable assistance.
- However, BusySeed shall not be required to indemnify Client in the event of:
- if the infringement or misappropriation was caused by or due to any act or omission of the Client, in whole or in part,
- modification of the Service by Client in conflict with Client’s obligations or as a result of any prohibited activity as set forth herein to the extent that the infringement or misappropriation would not have occurred but for such modification;
- use of the Service in combination with any other product or service not provided by BusySeed to the extent that the infringement or misappropriation would not have occurred but for such use; or,
- use of the Service in a manner not otherwise contemplated by the Agreement to the extent that the infringement or misappropriation would not have occurred but for such use.
General Provisions/Additional Terms
- Binding Effect of Contract. The Agreement between the Client and BusySeed shall constitute a legally binding contract between both parties. The Client is bound by the Agreement as long as the Client remains a BusySeed Client.
- Successors and Assigns. The Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors, and assigns.
- Effective Date. The effective date of the Agreement shall be the date on which the Client submits the first payment for Services to BusySeed.
- Terms Subject to Change. These Terms of Service are subject to change at any time.
- Captions for Convenience. All paragraph captions and headings are inserted for convenience only.
- Relationship of the Parties. Nothing herein shall be construed so as to create a relationship of partnership or joint venture between the parties hereunder.
- Sale, Assignment or Transfer of Contract. Neither party may distribute, sell, assign or otherwise transfer the Agreement or any right or interest created hereunder without prior written notification to and permission of the other party.
- Severability of Provisions. If any provision of the Agreement is declared invalid or unenforceable by any court of competent jurisdiction, the remaining provisions of the Agreement shall remain in effect, and shall not be affected thereby except as necessary to adjust for the invalidated provision, and the rights and obligations of the parties hereto shall be construed and enforced accordingly.
- Lawful Operation. Client expressly agrees to follow all applicable state and federal law concerning the operation of their business and agrees that failure to do so could result in termination of Client’s relationship with BusySeed.
- Timeliness. Client agrees not to commence any action or suit relating to the Agreement or its relationship with BusySeed more than six months after termination of the Agreement.
- Governing Law/Choice of Law. Client agrees that the laws of the State of Rhode Island shall govern the validity, construction, interpretation, and effect of the Agreement.
- Consent to Jurisdiction/Forum Selection. Client agrees that any action or suit relating to the Agreement or its relationship with BusySeed shall be adjudicated in the State of Rhode Island.
- Merger Clause. Client agrees that the Agreement between Client and BusySeed embodies the entire agreement of the parties in relation to the Services to be rendered by BusySeed and that no understandings or agreement, verbal or otherwise, exist between the parties except as herein expressly set forth.