This Agreement is effective as of December 1, 2019.
2.2 “Affiliate” means any entity which is controlled by, in control of, or is under common control with a party to this Agreement, where “control” means either the power to direct the management or affairs of the entity or ownership of 50% or more of the voting securities of the entity.
2.3 “Aggregate/Anonymous Data” means: (i) data generated by aggregating Customer Data with other data so that results are non-personally identifiable with respect to Customer or its Visitors; and (ii) learnings, logs, and data regarding use of the GeoKing Service.
2.4 “Authorized Users” means Customer’s employees and contractors (such as media agencies or marketing consultants) who are acting for Customer’s benefit and on its behalf.
2.5 “Confidential Information” means code, inventions, know-how, product plans, inventions, and technical and financial information exchanged under this Agreement, that is identified as confidential at the time of disclosure or should reasonably be considered confidential based on the circumstances surrounding the disclosure and the nature of the information disclosed.
2.6 “Content” means text, images, videos or other content for the Customer Property that Customer selects for use with the GeoKing Service. This Content becomes public on the Customer Properties, so Customer should only provide Content that it wishes others to see.
2.7 “Customer Apps” means the applications (such as for mobile device platforms or OTT devices) expressly identified in the applicable Order Form.
2.8 “Customer Data” means: (i) Content; (ii) Submitted Data; (iii) Visitor Data; and (iv) any other Customer Data specified in the Service-Specific Terms.
2.9 “Customer Property or Properties” means: (i) Customer Sites; (ii) Customer Apps; or (iii) other types of platforms or properties (as may be supported by GeoKing) specified in the applicable Order Form.
2.10 “Customer Sites” means the web domains expressly identified in the applicable Order Form.
2.11 “Documentation” means the end user technical documentation created by GeoKing and provided with the GeoKing Service, currently available in the Knowledge Base and Developer Docs at help.GeoKing.com/.
2.13 “GeoKing Service” means the specific proprietary software-as-a-service product(s) of GeoKing specified in Customer’s Order Form, including any related GeoKing Code and Documentation, and excluding any Third-Party Products.
2.14 “GeoKing Technology” means the GeoKing Service, any and all related or underlying documentation, technology, code, know-how, logos and templates (including in any reports or output obtained from the GeoKing Service), anything delivered as part of support or other services, and any updates, modifications or derivative works of any of the foregoing, including as may incorporate any Feedback.
2.15 “Order Form” means any GeoKing ordering documentation or online sign-up or subscription flow that references this Agreement.
2.16 “Regulated Data” means: (i) any personally identifiable information (other than personal information about Authorized Users); (ii) any patient, medical, or other protected or regulated health information; or (iii) any government IDs, financial information (including bank account or payment card numbers), or any other information subject to regulation or protection under specific laws or regulations.
2.17 “Scope of Use” means the usage limits or other scope of use descriptions for the GeoKing Service included in the applicable Order Form (including descriptions of packages and features) or Documentation. These include any numerical limits on Visitors or Authorized Users, descriptions of product feature levels, and names or numerical limits for Customer Properties.
2.19 “Submitted Data” means data uploaded, inputted or otherwise submitted by Customer to the GeoKing Service, including Third-Party Content.
2.20 “Subscription Term” means the initial term for the subscription to the applicable GeoKing Service, as specified on Customer’s Order Form(s), and each subsequent renewal term (if any).
2.21 “Third-Party Content” means content, data or other materials that Customer provides to the GeoKing Service from its third-party data providers, including through Add-Ons used by Customer.
2.22 “Third-Party Product” means any applications, integrations, software, code, online services, systems, other products, and Add-Ons not developed by GeoKing.
2.23 “Virus” means a virus, Trojan horse, or worm that is designed to harm, disrupt or interfere with computers, software or hardware and detectable using commercially reasonable procedures.
2.24 “Visitor” means any end user of a Customer Property.
2.25 “Visitor Data” means the data concerning the characteristics and activities of Visitors on the Customer Properties collected for Customer by the GeoKing Service, including any data specified in the Service-Specific Terms.
Other terms are defined in other Sections of this Agreement or in the relevant Service-Specific Terms, policies, or Exhibits.
4.2 Use by Others. Customer may permit its Authorized Users to use the GeoKing Service, provided their use is for Customer’s benefit only and remains in compliance with this Agreement. Customers will be responsible and liable for all Authorized Users’ use and access and their compliance with the terms and conditions of this Agreement. Use by all Authorized Users in aggregate will count towards applicable Scope of Use restrictions.
4.3 General Restrictions. Customer must not (and must not allow any third party to: (i) rent, lease, copy, transfer, resell, sublicense, lease, time-share, or otherwise provide access to the GeoKing Service to a third party (except Authorized Users); (ii) incorporate the GeoKing Service (or any portion of it) with, or use it with or to provide, any site, product, or service, other than on Customer Properties owned-and-operated by Customer and as specifically permitted above; (iii) publicly disseminate information regarding the performance of the GeoKing Service (which is deemed GeoKing’s Confidential Information); (iv) modify or create a derivative work of the GeoKing Service or any portion of it; (v) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats, or non-public APIs to any GeoKing Service (including GeoKing Code), except to the extent expressly permitted by applicable law and then only with advance notice to GeoKing; (vi) break or circumvent any security measures, rate limits, or usage tracking (such as event tracking) of the GeoKing Service, or configure the GeoKing Service (or any component thereof) to avoid sending events or impressions or to otherwise avoid incurring fees; (vii) distribute any portion of the GeoKing Service other than the GeoKing Code installed in Customer Properties as specifically permitted above; (viii) access the GeoKing Service for the purpose of building a competitive product or service or copying its features or user interface; (ix) use the GeoKing Service for purposes of product evaluation, benchmarking, or other comparative analysis intended for publication without GeoKing’s prior written consent; or (x) remove or obscure any proprietary or other notices contained in the GeoKing Service, including in any reports or output obtained from the GeoKing Service.
4.4 Beta Releases and Free Access Subscriptions. GeoKing may provide Customer with an GeoKing Service or GeoKing Code for free or on a trial basis (a “Free Access Subscriptions”) or with “alpha”, “beta”, or other early-stage GeoKing Services, GeoKing Code, integrations, or features (“Beta Releases”), which are optional for Customer to use. This Section will apply to any Free Access Subscriptions or Beta Releases (even if Beta Releases are provided for a fee or counts towards Customer’s Scope of Use allocations) and supersedes any contrary provision in this Agreement. GeoKing may use good faith efforts in its discretion to assist Customer with Free Access Subscriptions or Beta Releases. Nevertheless, and without limiting the other disclaimers and limitations in this Agreement.
5.2 Aggregate/Anonymous Data. Customer agrees that GeoKing will have the right to generate Aggregate/Anonymous Data and that Aggregate/Anonymous Data is GeoKing Technology, which GeoKing may use for any business purpose during or after the term of this Agreement (including without limitation to develop and improve GeoKing’s products and services and to create and distribute reports and other materials). For clarity, GeoKing will only disclose Aggregate/Anonymous Data externally in a de-identified (anonymous) form that does not identify Customer, Authorized Users, or Visitors, and that is stripped of all persistent identifiers (such as device identifiers, IP addresses, and cookie IDs). Customer is not responsible for GeoKing’s use of Aggregate/Anonymous Data.
5.3 Security. GeoKing agrees to maintain commercially reasonable technical and organizational measures designed to secure its systems from unauthorized disclosure and modification. GeoKing’s security measures will include: (i) storing Customer Data on servers located in a physically secured location; and (ii) using firewalls, access controls, and similar security technology designed to protect Customer Data from unauthorized disclosure and modification.
5.5 Data Export. GeoKing provides the ability for customers to export data at any time in the GeoKing Service as described in the Documentation.
9.2 Subscription Term and Renewals. By executing an Order Form for purchase of an GeoKing Service, Customer is agreeing to pay applicable fees for the entire Subscription Term. Customers cannot cancel or terminate a Subscription Term except as expressly permitted by Section 9.4 (Termination for Cause) or a Service-Specific Term. If no subscription start date is specified on the applicable Order Form, the subscription starts when Customer first obtains access to the GeoKing Service. Each Subscription Term will automatically renew for additional successive twelve-month periods unless: (i) otherwise stated on the applicable Order Form; or (ii) either party gives written notice of non-renewal at least thirty (30) days before the end of the then-current Subscription Term. Pricing for any Subscription Term renewal, new Order Form, or Order Form changes will be at GeoKing’s then-applicable rates.
9.3 Suspension of Service. GeoKing may suspend Customer’s access to the GeoKing Service(s) if: (i) Customer’s account is overdue; or (ii) Customer has exceeded its Scope of Use limits. GeoKing may also suspend Customer’s access to the GeoKing Service(s), remove Customer Data or disable Third-Party Products if it determines that: (a) Customer has breached Sections 4 (Use Rights) or 6 (Customer Obligations); or (b) suspension is necessary to prevent harm or liability to other customers or third parties, or to preserve the security, stability, availability or integrity of the GeoKing Service. GeoKing will have no liability for taking action as permitted above. However, unless this Agreement has been terminated, GeoKing will cooperate with Customer to promptly restore access to the GeoKing Service once it verifies that Customer has resolved the condition requiring suspension.
9.4 Termination for Cause. Either party may terminate this Agreement, including any related Order Form, if the other party: (i) fails to cure any material breach of this Agreement (including a failure to pay undisputed fees) within thirty (30) days after written notice detailing the breach; (ii) ceases operation without a successor; or (iii) if permitted by applicable law, seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any of these proceedings are instituted against that party (and not dismissed within sixty (60) days thereafter). GeoKing may also terminate this Agreement or any related Order Forms immediately if Customer breaches Sections 4 (Use Rights) or 6 (Customer Obligations), or for repeated violations of this Agreement.
9.5 Effect of Termination. Upon any expiration or termination of this Agreement or an Order Form: (i) Customer’s license rights terminate and it must promptly: (a) stop use of the applicable GeoKing Service(s) (including any related GeoKing Technology); (b) stop distributing any GeoKing Code installed on its Customer Properties; and (c) delete (or, at GeoKing’s request, return) any and all copies of the GeoKing Code, any GeoKing documentation, passwords or access codes, and any other GeoKing Confidential Information in Customer’s possession, custody, or control; and (ii) Customer’s right to access any Customer Data in the applicable GeoKing Service will cease and GeoKing may delete the Customer Data at any time after 30 days from the date of termination. If GeoKing terminates this Agreement for cause as provided in Section 9.4 (Termination for Cause), any payments for the remaining portion of the Subscription Term will become due and must be paid immediately by Customer. Except where this Agreement specifies an exclusive remedy, all remedies under this Agreement, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a party.
9.6 Survival. The following Sections survive any expiration or termination of this Agreement: 2 (Definitions); 3 (Account Registration and Use); 4.3 (General Restrictions); 4.4 (Beta Releases and Free Access Subscriptions); 5.1 (Rights in Customer Data); 5.2 (Aggregate/Anonymous Data); 8 (Fees and Payment); 9 (Term and Termination); 10 (Confidential Information); 11 (GeoKing Technology); 12 (Indemnification); 13.2 (Disclaimers); 14 (Limitations of Liability); 15 (Third-Party Products and Integrations); and 16 (General).
10.2 Exclusions. These confidentiality obligations do not apply to (and Confidential Information does not include) information that: (i) is or becomes public knowledge through no fault of the receiving party; (ii) was known by the receiving party before it received the Confidential Information; (iii) is rightfully obtained by the receiving party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by the receiving party without using the disclosing party’s Confidential Information. A party may also disclose the other party’s Confidential Information to the extent required by law or court order, provided it gives advanced notice (if permitted by law) and cooperates in any effort by the other party to obtain confidential treatment for the information.
10.3 Remedies. The parties acknowledge that disclosing Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy, and so on breach of this Section, each party is entitled to seek appropriate equitable relief in addition to any other remedies it may have at law.
11.2 Feedback. If Customer elects to provide any suggestions, comments, improvements, information, ideas or other feedback or related materials to GeoKing (collectively, “Feedback”), Customer hereby grants GeoKing a worldwide, perpetual, non-revocable, sublicensable, royalty-free right and license to use, copy, disclose, license, distribute, and exploit any Feedback in any format and in any manner without any obligation, payment, or restriction based on intellectual property rights or otherwise, however GeoKing will not identify Customer as the source of the Feedback. Nothing in this Agreement limits GeoKing’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
13.2 Exceptions. NOTWITHSTANDING THE FOREGOING, NONE OF THE LIMITATIONS IN THIS SECTION 14 EXCLUDES EITHER PARTY’S LIABILITY FOR FRAUD OR FOR DEATH OR PERSONAL INJURY TO THE EXTENT CAUSED BY A PARTY’S NEGLIGENCE. IN ADDITION, THE LAWS IN SOME JURISDICTIONS MAY NOT ALLOW SOME OF THE LIMITATIONS OF LIABILITY IN THIS SECTION. IF ANY OF THESE LAWS IS FOUND TO APPLY TO THIS AGREEMENT, THIS SECTION 14 WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
13.3 Failure of Essential Purpose. EACH PARTY ACKNOWLEDGES AND AGREES THAT THIS SECTION 14 IS A FUNDAMENTAL BASIS OF THE BARGAIN AND A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES AND WILL SURVIVE AND APPLY TO ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY GeoKing TECHNOLOGY OR ANY RELATED SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EVEN IF ANY LIMITED REMEDY IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
15.2 Notices. Any notice or communication under this Agreement must be in writing. Customer must send any notices under this Agreement (including breach notices) to GeoKing, in English, at the following address, [email protected], and include “Attn. Legal Department” in the subject line. GeoKing may send notices to the email addresses on Customer’s account or, at GeoKing’s option, to Customer’s last-known postal address. GeoKing may also provide operational notices regarding the GeoKing Service or other business-related notices through conspicuous posting of the notice on GeoKing’s website or the GeoKing Service. Each party consents to receiving electronic notices. GeoKing is not responsible for any automatic filtering Customer or its network provider may apply to email notifications.
15.3 Publicity. Unless otherwise specified in the applicable Order Form, GeoKing may use Customer’s name, logo, and marks (including marks on Customer Properties) to identify Customer as an GeoKing customer on GeoKing’s website and other marketing materials.
15.4 Subcontractors. GeoKing may use subcontractors and permit them to exercise the rights granted to GeoKing in order to provide the GeoKing Service and related services under this Agreement. These subcontractors may include, for example, GeoKing’s hosted service and CDN providers. However, subject to all terms and conditions of this Agreement, GeoKing will remain responsible for: (i) compliance of its subcontractors with the terms of this Agreement; and (ii) the overall performance of the GeoKing Services if and as required under this Agreement.
15.5 Independent Contractors. The parties to this Agreement are independent contractors, and this Agreement does not create a partnership, joint venture, employment, franchise, or agency relationship. Neither party has the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
15.6 Force Majeure. Neither party will be liable for any delay or failure to perform its obligation under this Agreement (except payment obligations) if the delay or failure is due to causes beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or reduction of power or telecommunications or data networks or services, or government act.
15.8 Severability. If any provision of this Agreement is found by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement may otherwise remain in effect.
15.9 No Third-Party Rights. Nothing in this Agreement confers on any third party the right to enforce any provision of this Agreement. Customer acknowledges that each Order Form only permits use by and for the legal entity or entities identified in the Order Form(s) as the Customer, and not any Customer Affiliates.
15.10 Entire Agreement. This Agreement represents the parties’ complete and exclusive understanding relating to the Agreement’s subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the GeoKing Technology or any other subject matter covered by this Agreement. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. Any terms provided by Customer (including as part of any purchase order or other business form used by Customer) are for administrative purposes only, and have no legal effect.
15.11 Governing Law, Jurisdiction and Region-Specific Terms. Governing law, jurisdiction, and other region-specific terms are set out below:
English language. The parties agree that this Agreement is in the English language. Les parties ont demande a ce que le present document soit redige en langue anglaise.
UK, IE, Middle East, Africa, Russia, and India. For customers located in the Republic of Ireland, the United Kingdom, British Crown Dependencies, British Overseas Territories, Middle East, Africa, Russia, and India the following terms apply:
Governing Law; Jurisdiction and Venue. This Agreement is governed by the laws of the Kingdom of Saudi Arabia and the parties submit to the exclusive jurisdiction and venue of courts located in the KSA.