Church52 End User License Agreement and Terms of Service.

Last Updated: May 20, 2020
This Church52 services agreement (the “Agreement”) is comprised of the Order Form and the Church52 Terms and Conditions set out below and is entered into as of the date that Customer accepts the Order Form (the “Effective Date”), between Church52 “Church52”), with its principal place of business located at 456, 8th Street, Oakland, CA, 94607 and the customer identified in the Order Form (the “Customer”).
(1) Definitions.

a. “Church52-Provided Content” means any video recordings, audio recordings, pictures, information, documentation, or other content or materials prepared, developed or provided by or on behalf of Church52 pursuant to this Agreement (excluding, for greater certainty, Customer-Provided Content).

b. “Church52 Services” has the meaning set out in Section 2(a).

c. “Customer-Provided Content” means any video recordings, audio recordings, pictures, information, documentation, or other content or materials (including any email addresses and email contact lists) that Customer provides to Church52 pursuant to this Agreement.

d. “Fees” has the meaning set out in Section 5.

e. “Modifications” means modifications, improvements, customizations, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.

f. “Order Form” means any order form entered into by Church52 and Customer that references these Terms and Conditions.

g. “Parties” means Church52 and Customer, and “Party” means either one of them.

h. “Personal Information” means information about an identifiable individual.

i. “Term” has the meaning set out in Section 9(a).

(2) Church52 Services

a. Church52Services. Subject to Customer’s compliance with the terms and conditions of this Agreement, Church52 will use commercially reasonable efforts to provide the services described in the Order Form (the “Church52Services”).b. Support. Church52 will use commercially reasonable efforts to provide support by phone from 9 AM to 5 PM (PT) on business days (i.e. Monday through Friday, excluding provincial and federal holidays observed at Church52's offices). Church52 will use reasonable efforts to provide responses to all emails at yaw@Church52.co  within one business day.c. Collaboration. Customer acknowledges that Church52's performance of the Church52Services is dependent on Customer’s performance of certain activities and tasks.  Customer agrees (at its own cost and expense) to take all actions as reasonably required to enable Church52 to provide the Church52 Services, including:
i. responding to Church52 's reasonable requests for information and providing Customer-Provided Content to Church52 in a usable format;
iv. obtaining and maintaining a website domain that Church52  can link to the website it creates for Customer;
v. obtaining and maintaining a Facebook account and Mailchimp account and providing Church52 with access to such accounts as required for Church52  to provide the Church52 Services; and
vi. completing the Launch Form (preferences form) made available by Church52 .
d. Customer Restrictions. Customer must not itself, and will not permit others to:
i. other than as required to advertise and promote Customer and its church services, Modify, sub-license, sell, rent, lend, lease, make available, or distribute the Church52 Services or the Church52 -Provided Content;
ii. use or access the Church52 Services or Church52 -Provided Content in violation of any applicable law;
iii. provide or transmit any Customer-Provided Content:
A. that Customer does not have the lawful right to create, collect, transmit, store, use or process; orB. that violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity);
iv. build a competitive product or service to the Church52 Services or the Church52 -Provided Content; or
vi. use the Church52 Services or Church52 -Provided Content for any purpose or in any manner not expressly permitted in this Agreement.
e. Suspension of Access; Scheduled Downtime; Modifications. Church52 may, at its discretion, suspend the Church52 Services, including removing the Church52 -Provided Content from any website or platform, if Customer violates any provision of this Agreement.f. Responsibility for Advertising Strategy. Customer is solely responsible for: (i) oversight of its advertising strategy; and (ii) placement of and content contained in the advertisements. Church52 will use reasonable efforts to correct, but not responsible for, errors in advertisements, posts and newsletters (e.g. typos, incorrect placements of advertisements, etc.).
g. Responsibility for Customer Accounts and Tools (social media, websites, etc.). To the extent that Customer provides log-in information to Church52 for Customer’s accounts, mailing lists, or tools (e.g. social media, Google analytics, etc.), Customer acknowledges that Church52 will use reasonable efforts to safeguard, but is not responsible for, use or misuse of such accounts, mailing lists, and tools (including content posted to such accounts and advertising spending authorizations). Customer may provide Church52 with only the limited access that Church52 requires to provide the Church52 Services. To the extent that Customer provides additional access rights or privileges (e.g. admin-level access, ability to change spending limits, access to financials or site code), Customer does so at its own risk.

(3) Ownership; Reservation of Rights

a. Except as expressly provided in this Agreement, Customer retains all right, title and interest, including intellectual property rights, in and to the Customer-Provided Content.  Customer grants to Church52 a non-exclusive, worldwide, royalty-free, fully paid-up right to use, edit, adapt, change, alter, and Modify the Customer-Provided Content (including any content or information contained within the Customer-Provided Content) to provide the Church52 Services.
b. Except as expressly provided in this Agreement, Church52 or its licensors retain all right, title and interest, including intellectual property rights, in and to: (i) the Church52 Services, the Church52 -Provided Content, and anything else created or provided by Church52 pursuant to this Agreement; and (ii) any Modifications to the foregoing clause (i). To the extent that any Customer-Provided Content is integrated with, embedded in, forms part of, or is otherwise required in order to exercise Church52 's rights in and to the Church52 property described in the previous sentence, Customer grants to Church52 a perpetual, irrevocable, royalty-free, worldwide, non-exclusive license to the extent required to exercise such rights.
c. All rights not expressly granted by Church52 to Customer under this Agreement are reserved

(4) Privacy

Customer agrees (on Customer’s behalf and on behalf of each person that appears or is identified in Customer-Provided Content) to Church52's access, use, collection, storage, and disclosure of Customer’s and each such person’s Personal Information for the purposes authorized under this Agreement. Customer understands that Personal Information, including the Personal Information of such persons, will be treated in accordance with Church52's privacy policy located at https://church52.co/privacy-policy (the “Privacy Policy”).

(5) Fees and Payment

a. Fees. Customer will pay to Church52 the fees described in each Order Form (the “Fees”). Unless otherwise specified on the Order Form, Fees will be auto invoiced and payable by Customer on a monthly basis on the day in which Customer signs up for the Church52 Services. If Church52's performance of the Church52 Services requires the payment of additional fees (pursuant to the terms of this Agreement), Customer will be billed for such fees and pay the fees in accordance with this Agreement. Church52 may modify the Fees from time to time upon at least 30 days’ notice to Customer. Customer acknowledges that Church52 does not provide any refunds of Fees once the corresponding payments have been processed.
b. Disputed Invoices or Charges. If Customer believes Church52  has charged or invoiced Customer incorrectly, Customer must contact Church52 no later than 45 days after having been charged by Church52 or receiving such invoice in which the error or problem appeared in order to request an adjustment or credit. In the event of a dispute, Customer will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith in order to resolve the dispute.
c. Late Payment. Customer may not withhold or setoff any amounts due under this Agreement. Church52 reserves the right to suspend the Church52 Services until all due amounts are paid in full. Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid.
d. Taxes. The Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, GST or HST, personal property or other taxes. Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement, other than taxes based on the net income or profits of Church52 .
c. Suspension. Any suspension of the Church52 Services by Church52 pursuant to the terms of this Agreement will not excuse Customer from its obligation to make payments under this Agreement.

(6) Confidential Information

a. Definitions. For the purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” means information marked or otherwise identified in writing by a Party as proprietary or confidential, or information that, under the circumstances surrounding the disclosure, the Recipient should recognize as being confidential; provided that Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) Customer-Provided Content (except to the extent expressly agreed by the Parties in writing); (ii) information already known or independently developed by Recipient without access to Discloser’s Confidential Information; (iii) information that is publicly available through no wrongful act of Recipient; or (iv) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.

b. Confidentiality Covenants. Recipient hereby agrees that during the Term and at all times thereafter it will not: (i) disclose Confidential Information of the Discloser to any person, except to its own personnel or affiliates having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential Information of the Discloser except to exercise its license rights or perform its obligations under this Agreement; or (iii) alter or remove from any Confidential Information of the Discloser any proprietary legend. Each Party will take reasonable precautions to safeguard the other Party’s Confidential Information. Those precautions will be at least as protective as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.

c. Exceptions to Confidentiality. Notwithstanding Section 6(b), Recipient may disclose Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business; or (iii) in the case of Church52 , to potential assignees, acquirers or successors of Church52 if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of Church52 .

(7) Warranty; Disclaimer; Indemnity

a. Customer Warranty. Customer represents and warrants to, and covenants with Church52 that: (i) Customer has obtained all applicable rights and permissions to enable Church52 to perform the Church52 Services, including the right to use, distribute and reproduce the Customer-Provided Content (including to use email addresses and contact information provided by Customer) and to grant the licenses in Section 3; and (ii) the Customer-Provided Content will only contain Personal Information and email addresses in respect of which Customer has provided all notices and disclosures, obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by applicable laws, to enable Church52 to provide the Church52 Services.
b. GENERAL DISCLAIMER. Church52 DOES NOT WARRANT THAT THE Church52 SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE Church52 SERVICES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE Church52 SERVICES (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY Church52 TO CUSTOMER, ARE PROVIDED “AS IS” AND “AS AVAILABLE”.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, Church52 HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
Church52 DOES NOT ENDORSE THE Church52-PROVIDED CONTENT AND SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE, OR OTHERWISE), INJURY CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER BASED UPON OR RESULTING FROM ANY Church52-PROVIDED CONTENT.
i. Indemnity. Customer will defend, indemnify and hold harmless Church52 , its employees, officers, directors, affiliates, agents, contractors, successors, and assigns against any and all third party liability (including damages, recoveries, deficiencies, interest, penalties and legal fees), directly or indirectly arising from or in connection with any of the following: (i) the Customer-Provided Content; (ii) Customer’s breach of any of Customer’s obligations, representations, or warranties under this Agreement; and (iii) any personal injury, death, or property damage to the extent caused by any act or omission of Customer. Customer will fully cooperate with Church52 in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of Church52 .

(8) Limitation of Liabilities

The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:

a. Amount. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF CHURCH52 IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE FEES PAID BY CUSTOMER TO CHURCH52 IN THE 12 MONTHS PRECEDING THE DATE ON WHICH THE CLAIM AROSE. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL CHURCH52's THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.

b. Type. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL CHURCH52 BE LIABLE TO CUSTOMER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST SAVINGS, PROFIT, CONTENT, USE, OR GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.

(9) Terms and termination

a. Term. This Agreement will commence on the Effective Date and continue to be in effect until terminated in accordance with this Agreement (the “Term”).

b. Termination. Either Party may terminate this Agreement for convenience upon notice to the other Party. If either Party terminates this Agreement for convenience, Customer will be responsible for the Fees payable for the Church52 Services subscribed to by Customer through the end of the then-current monthly billing period; provided that Church52 will provide Customer with a refund for any Fees paid by Customer for Church52 Services to be provided following the end of such monthly billing period.

c. Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 3 (Ownership; Reservation of Rights), Section 4 (Privacy), Section 5 (Fees and Payment), Section 6 (Confidential Information), Section 7 (Warranty; Disclaimer; Indemnity), Section 8 (Limitation of Liabilities), Section 9(c) (Survival), and Section 10 (General Provisions).

(10) General Provisions

a. Notices. Notices sent to either Party will be effective when delivered in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be in writing and sent: (i) if to Church52 , to the following address:

yaw@church52.co
Church52
456 8th Street
Oakland, CA 94607

and (ii) if to Customer, to the current postal or email address that Church52 has on file with respect to Customer. Church52 may change its contact information by posting the new contact information on its website or by giving notice thereof to Customer. Customer is solely responsible for keeping its contact information on file with Church52 current at all times during the Term.
b. Subcontracting and Assignment. Customer will not assign this Agreement to any third party without Church52 's prior written consent. Church52  may assign this Agreement or any rights under this Agreement, or delegate or subcontract all or any part of the Church52 Services, to any third party without Customer’s consent. Any assignment in violation of this Section will be void. This Agreement will inure to the benefit of and be binding upon the Parties, their permitted successors and permitted assignees.
c. Choice of Law. This Agreement and any action related thereto will be governed by and construed in accordance with the substantive laws of the   United States of America applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Oakland, California, USA , and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. This choice of jurisdiction does not prevent Church52 from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.
d. Construction. Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion”, when used in respect of Church52 in this Agreement means the right of Church52 to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to Customer.
e. Force Majeure. Neither Party will be liable for delays caused by any event or circumstances beyond Church52 's reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving Church52 's employees), Internet service failures or delays, or the unavailability or modification by third parties of telecommunications or hosting infrastructure or third party websites.
f. Severability. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
g. Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
h. Independent Contractors. Church52 's relationship to Customer is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and will not represent to any third party that it has, any authority to act on behalf of the other Party.
i. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications, whether written or oral.
j. Amendments. No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby.
k. English Language. It is the express wish of the Parties that this Agreement and all related documents be drawn up in English.
l. Publicity. Upon Customer’s prior approval, Church52 may: (i) display Customer’s website to potential customers and other third parties as an example of Church52 's work; and (ii) list Customer as a customer of Church52 .