Updated January 10, 2024
“Advocate” means individuals who have been invited by Customer to join Customer’s Advocate community by using the Services. “Customer Content” means all data or information uploaded, submitted or posted by Customer and its Users during the Service Term. “Documentation” means Zuberance’s online knowledge base, documentation, and/or help and training materials, as updated from time to time, accessible via zuberance.com or login to the applicable Service. “IZEA Property” shall mean any technical information, solution content, techniques, ideas, methods, processes, software, interfaces, utilities, data, data templates or files, dashboard, databases, designs, know-how, intellectual property, information or materials of any kind (regardless of form) which has been or is acquired, created, developed or licensed by IZEA prior to or outside the scope of this Agreement and any improvement, modification or other derivative works thereof and all intellectual property rights therein. “Services” or “Subscription” means the online, Web-based SaaS application provided by IZEA on a subscription basis and professional services that are ordered by Customer under a Statement of Work. “User” means an individual who is authorized by Customer to use the Services on behalf of the Customer, including but not limited to Advocates, employees, consultants, contractors, and agents of Customer.
2. IZEA SERVICES
2.1 Provision of Services. IZEA shall make the Services available to Customer and its Users on a subscription basis pursuant to this Agreement and the applicable Order Forms during the Service Term.
2.2 Subscriptions. Unless otherwise specified in the applicable Order Form or the Statement of Work, (i) Services are purchased as Subscriptions; (ii) additional Subscriptions may be added during the Subscription Term at the same pricing as that for the pre-existing Subscriptions, prorated for the remainder of the Term in effect at the time the additional Services are added; and (iii) the added Subscriptions shall terminate on the same date as the pre-existing Subscriptions. Professional Services may be purchased by Customer at IZEA’s then current rates and shall be detailed in the corresponding Statement of Work.
2.3 IZEA Responsibilities. IZEA shall: (i) provide to Customer basic support for the Services at no additional charge, and/or upgraded support, if purchased, provided that the terms of such upgraded support are described in the Order Form; and (ii) make the Services available in accordance with IZEA’s policies.
2.4 Incentive Disclosures. IZEA will notify Advocates of their obligation to include a clear and conspicuous disclosure of Advocate’s relationship with Customer in any published Consumer Content, in compliance with applicable laws, rules, and regulations (including the Federal Trade Commission Guides Concerning the Use of Testimonials and Endorsements in Advertising, effective December 1, 2009 as amended from time to time), as they may relate to Advocate’s relationship with Marketer.
3.1 Fees. Customer shall pay IZEA all the fees specified in the Order Forms (the “Fees”). Fees are based on Services purchased and not on actual usage; payment obligations are non-cancellable; and Fees are non-refundable. Fees for the Services will be invoiced in advance in accordance with the terms of the Order Form.
3.2 Payment Terms. Unless otherwise stated in the Order Form, payment is due within thirty (30) days of receipt of an invoice. Any payment not received from Customer by the due date shall accrue (except with respect to charges then under reasonable and good faith dispute), at the lower of 1.5% or the maximum rate permitted by law of the outstanding balance per month from the date such payment is due until the date paid.
3.3 Taxes. Total fees are inclusive of applicable taxes as indicated in an Order Form, and Customer shall be responsible for payment of the same, excluding only taxes based solely on IZEA’s income. If IZEA does not invoice Customer for applicable taxes, Customer remains responsible for the calculation and remittance of such taxes to the applicable government authority, now or at any time in the future, unless Customer provides IZEA with a valid tax exemption certificate authorized by the appropriate taxing authority.
4. TERM AND TERMINATION
4.1 Term of the Agreement. This Agreement commences on the date indicated in the Order Form and automatically renews unless Customer delivers notice of non-renewal at least thirty (30) days prior to the end of the Term by emailing Cancellations@izea.com.
4.2 Termination of the Agreement. This Agreement and any Services may be terminated by either party for cause: (a) upon thirty (30) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (b) if either party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
5. PROPRIETARY RIGHTS
5.1 Grant of License. Subject to the terms herein, IZEA grants Customer a non-exclusive, non-transferable, non-assignable, worldwide limited license to access and use the Services solely in accordance with the terms of this Agreement.
5.2 Reservation of Rights. Subject to the limited rights expressly granted hereunder, IZEA reserves all rights, title and interest in and to the Services and the IZEA Property including all related intellectual property rights. No rights, title or interest are granted to Customer hereunder other than as expressly set forth herein.
5.3 Restrictions. Customer shall not, and shall not allow third parties to: (i) license, sublicense, lease, rent, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services in any way provided however that the Customer may permit use of Services, strictly in accordance with this Agreement, by third parties working on behalf of the Customer; (ii) access (or attempt to access) any of the Services by any means (including automated means) other than through the User ID that is provided by IZEA; (iii) reverse engineer, adapt, translate, decompile, or otherwise derive the source code for the Services; or access the Services in order to copy or imitate any ideas or features; or build a product or service similar to the Services; or use similar features, software, functions or graphics as those of the Services, whether or not intended to compete with the Services; (iv) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit Malicious Code or material in violation of third-party privacy rights, (v) access the Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purpose or (vi) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein.
Customer shall receive a revocable limited license to use the Platform. Any additional users allowed access to the Customer’s account or campaigns on the Platform, whether Customer’s contractors or employees, and whether or not located in or outside of the U.S., will be Customer’s responsibility and Customer must comply with all applicable laws and security protocols pertaining to their access, including applicable export laws, restrictions, and regulations. For the avoidance of doubt, the platform should not be made available, accessed, copied, or distributed to users in prohibited countries, or prohibited persons or entities, as indicated in an Office of Foreign Assets Control (OFAC) of the US Department of the Treasury list.
5.5 Excluded Customer Data. Customer acknowledges that the Services are not intended to be a repository of personal data that may be considered sensitive or privileged, such as financial information, non-public personally identifiable information that could be legally considered private or sensitive, including without limitation, social security numbers, driver’s license numbers, birth dates, personal bank account numbers, and credit card numbers (the “Excluded Customer Data”). Notwithstanding the above, in the event that Customer or any of its Users uploads Excluded Customer Content to the Services in violation of this Agreement, Customer agrees to remove such information immediately, or at its reasonable discretion and upon prior written notice, IZEA may purge such data from its systems.
5.6 User Passwords. IZEA will only store User’s passwords in encrypted form. IZEA personnel will not be able to read User’s passwords.
5.7 Destruction of Customer Content. Upon written request by Customer made within 30 days after the effective date of termination, IZEA will provide Customer with temporary access to the Services solely to provide Customer an opportunity to retrieve its Customer Content. After such 30-day period, IZEA shall have no obligation to maintain or provide any Customer Content and may reasonably thereafter, unless legally prohibited, delete all Customer Content in IZEA’s systems or otherwise in its possession or control.
5.8 Professional Services. IZEA grants Customer a non-exclusive, royalty-free, non-transferrable, non-sublicensable, worldwide license to use, access, copy, store, any IZEA Property incorporated in any deliverables provided in connection with the Professional Services solely for Customer’s internal business purposes in connection with Customer’s use of the Services. “Professional Services” means any consulting services expressly provided for in any Order Form or Statement of Work.
6.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party“) to the other party (“Receiving Party“), that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including but not limited to Customer Content, the terms and conditions of this Agreement and any Order Form, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by either party. However, Confidential Information (other than Customer Content) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
6.2 Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party: (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); (ii) the Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (iii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement to any third-party other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent.
6.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable actual cost of compiling and providing secure access to such Confidential Information.
7. REPRESENTATIONS AND WARRANTIES
7.1 Corporate Authority. Each party represents and warrants that it has the legal power and authority to enter into these Terms, and that the Order Form is executed by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of this Agreement.
7.2 Compliance with Laws. Each party represents and warrants that it will comply with all applicable laws in connection with the performance of its obligations and the exercise of its rights under this Agreement.
7.3 Functionality Warranty. IZEA warrants that the Services will operate in a manner consistent with general industry standards reasonably applicable to the provision hereof and in substantial conformity with the then current version of the applicable Documentation.
7.4 Data Security and Warranty. IZEA has implemented Appropriate Security Measures (as hereinafter defined) and maintains the Services at reputable third-party Internet service providers and hosting facilities. “Appropriate Security Measures” means commercially reasonable efforts to ensure that the Customer Content will be maintained accurately and safeguarded as well as technical and physical controls to protect Customer Content against destruction, loss, alteration, unauthorized disclosure to third parties or unauthorized access by employees or contractors employed by IZEA, whether by accident or otherwise.
7.5 Additional Warranties. IZEA represents and warrants that: (i) the Services will be provided in a professional, timely and workmanlike manner, and consistent with generally accepted industry standards; (ii) the Services will comply in all material respects with all written specifications; (iii) the Services will be free of material defects; (iv) the IZEA technology shall not deliver any viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate the contents of any databases and/or the normal operation of any computer systems (“Malicious Code”); (v) at the time of delivery, all Documentation required hereunder (if any) shall be complete so as to enable Customer personnel with ordinary skills and experience to utilize the Services for the purposes for which they are being acquired by Customer.
7.6 Disclaimer. Except as expressly provided herein, Customer acknowledges and agrees that the Services are provided on an “As Is”, as available basis. Other than as expressly provided herein, IZEA DISCLAIMS WARRANTIES, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION THE CONDITIONS AND/OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE TO THE MAXIMUM EXTENT PERMITTED BY LAW. IZEA DOES NOT WARRANT THAT THE SERVICES WILL MEET THE CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. FURTHER, IZEA DOES NOT WARRANT THAT ALL ERRORS IN THE SERVICES CAN BE CORRECTED.
8. LIMITATION OF LIABILITY
EXCEPT INDEMNIFICATION AND DATA SECURITY OBLIGATIONS AND FOR DAMAGES ARISING FROM BREACHES OF CONFIDENTIALITY, IN NO EVENT SHALL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, (1) IN THE AGGREGATE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER OR, (2) WITH RESPECT TO ANY SINGLE INCIDENT GIVING RISE TO LIABILITY, EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
9.1 IZEA Indemnification. IZEA shall indemnify and hold harmless the Customer against any loss, damage or cost (including reasonable attorney’s fees) incurred in connection with claims, demands, suits or proceedings (“Claims”) made or brought against Customer by a third party based on breach of any representation, warranty, or obligation of IZEA set forth in this Agreement, alleging a data security incident or breach related to data store by IZEA, or alleging that the use of the Services, excluding any Customer-supplied materials, infringes the intellectual property rights of a third party. Notwithstanding the foregoing if IZEA reasonably believes that the Customer’s use of any portion of the Services is likely to be enjoined by reason of a Claim of infringement, violation or misappropriation of any third party’s intellectual property rights then IZEA may, at its expense: (i) procure for the Customer the right to continue using the Services; (ii) replace the same with other software, services or other material of equivalent functions and efficiency that is not subject to an action of infringement; or (iii) modify the applicable software, support services or other material so that there is no longer any infringement or breach, provided that such modification does not adversely affect the capabilities of the Services as set out herein. IZEA shall have no liability respecting any Claim of infringement or breach as aforesaid to the extent such Claim is based upon the combination, operation or use of the Services with other equipment or software not supplied by IZEA or in a manner not consistent with IZEA’s instructions. THIS SECTION SETS FORTH IZEA’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
The foregoing indemnification shall not apply to infringement to the extent caused by (a) Customer’s modification or use of the Platform other than as contemplated by the Agreement; (b) Customer’s failure to use corrections or enhancements made available by IZEA to the extent that such corrections or enhancements would make the Platform non-infringing (and IZEA notified Customer of that fact in writing (email or internal notification in Platform is also sufficient)); or (c) information, specification or materials provided by Customer or third party acting for Customer which is the cause of such infringement claim.
9.2 Customer Indemnification. Customer agrees to indemnify and hold IZEA harmless against any loss, damage or costs (including reasonable attorney’s fees) incurred in connection with Claims made or brought against IZEA by a third party arising from or relating to (a) any materials provided, published, or disseminated by Customer; (b) Customer’s or its authorized users’ negligent acts or omissions in the operation of the Platform (including claims of failure to make payments to users), including a material breach of Customer’s obligations, representations, warranties or covenants contained in this Agreement; or (c) violations of any applicable laws.
9.3 Mutual Provisions. Each party’s indemnity obligations are subject to the following: (i) the aggrieved party shall promptly notify the indemnifier in writing of the Claim; (ii) the indemnifier shall have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle or defend any Claim without the prior written consent of the other party); and (iii) the aggrieved party shall cooperate fully to the extent necessary, and execute all documents necessary for the defense of such Claim.
10. GENERAL PROVISIONS
10.1 Assignment. Neither party shall assign its rights or delegate its duties under the Agreement either in whole or in part without the prior written consent of the other party, except to a party that acquires all or substantially all of the assigning party’s assets as part of a corporate reorganization, merger or acquisition provided that the assignee agrees to be bound by the terms of this Agreement and it is not a competitor of the non-assigning party. The Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.
10.3 Amendments. No amendment, supplement, modification, waiver or termination of this Agreement shall be binding unless executed in writing by the Parties to be bound thereby.
10.4 Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the State of Florida and subject to the exclusive jurisdiction of the same.
10.5 Relationship. The Parties are independent contractors. This Agreement does not create a joint venture, partnership, employment, franchise, or agency relationship between Customer and IZEA.
10.6 Waiver and Severability. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
10.7 Force Majeure. Neither party will be liable for any failure or delay in its performance under the Agreement, due to any cause beyond its reasonable control provided that the delayed party (a) gives the other party prompt notice of such cause, and (b) uses reasonable commercial efforts to promptly correct such failure or delay in performance.
10.8 Entire Agreement. This Agreement, together with any applicable Order Form(s) and Statements of Work (including any other documents referenced therein), comprises the entire agreement between Customer and IZEA regarding the subject matter contained herein, exclusively governs the Customer’s use of the IZEA Services, and supersedes all prior or contemporaneous negotiations, discussions or agreements. In the event of any conflict between the terms of this Agreement and the terms of any Order Form and Statement of Work, the terms of the Order Form or Statement of Work, as applicable, shall prevail. This Agreement will not be altered by any pre-printed terms set forth on any other document, and may only be amended by a written document signed by both parties expressing their specific intent to alter such terms.
10.9 Surviving Provisions. The sections titled “Fees,” “Payment Terms,” “Proprietary Rights,” “Confidentiality,” “Warranties and Disclaimers,” “Indemnification,” “Limitation of Liability,” Surviving Provisions,” and “General Provisions” shall survive any termination or expiration of this Agreement.