Terms and Conditions
Effective: March 1st, 2023
1) SERVICES AND SUPPORT
1.1 Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services. As part of the registration process, Customer will identify an administrative username and password for Customer’s Company account. End users of Customer who access the Customer-branded home page and engage with the Services in order to rent, lease, or otherwise procure Customer products (the “End User(s)”) may likewise be required to establish login credentials including a username and password in order to interact with the Services. Company reserves the right to refuse registration of or cancel passwords it deems inappropriate.
1.2 Subject to the terms hereof, Company will provide Customer with reasonable technical support services Monday through Friday between the hours of 8AM-6PM Eastern Standard Time, excluding holidays
2) RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Company hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.
2.2 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.3 In connection with Customer’s use of the Services, certain information pertaining to Customer will be captured by the Services or otherwise provided or made available to Company by Customer (the “Customer Data”). Likewise, in connection with each End User’s use of the Services, certain information pertaining to End Users will also be captured by the Services or otherwise provided or made available to Company by Customer or directly by the End User (the “End User Data”). Customer Data and End User Data may include personal information of Customer or End Users, including without limitation name, address, phone number, email address, physical address, date of birth, and payment information.
2.4 Customer is solely responsible for End User Data and Customer Data and acknowledges and agrees that Company: (a) is not involved in the creation or origination of End User Data or Customer Data, (b) disclaims any responsibility for End User Data or Customer Data, (c) cannot be liable for claims arising out of or relating to End User Data or Customer Data, and (d) is not obligated to monitor, review, or remove End User Data or Customer Data, but reserves the right to limit or remove End User Data or Customer Data on the Services at its sole discretion.
2.5 Customer hereby represents and warrants to Company that Customer has obtained all necessary authorization and permission to collect, process, and disclose End User Data to Customer, and that End User Data and the Customer Data (i) will not infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary right or rights of publicity, personality or privacy; (ii) will not violate any law, statute, ordinance, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination, false advertising, anti-spam or privacy; (iii) will not be obscene or contain pornography or be harmful to minors; and (iv) will not contain any viruses, Trojan Horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
2.7 Payment processing services for End Users are provided by a third party (for example, Stripe), and Customer acknowledges and agrees that as part of Customer’s onboarding process for the Services, Customer will be required to accept the terms of service and any other related agreements as may be reasonably required by the payment processing services provider. In order to facilitate End Users’ payment for Customer’s services as part of the Company Services, Customer hereby grants to Company the right to enable payments acceptance on Customer’s behalf (as relates to payments from End Users), and the right to access and view Customer account and End User transaction-related payment data.
2.8 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3) CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.2 Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Implementation Services or support, (c) any works of authorship, concepts, know-how, improvements, or other content created, conceived, developed, or reduced to practice by Company in connection with its performance of any Ad Management Services, (the “Ad Services Content”), and (d) all intellectual property rights related to any of the foregoing; provided, that any Customer Data, including Customer logos, promotional graphics and related marketing designs (the “Customer Art”) shall remain the sole and exclusive property of Customer; and further provided, that Customer hereby grants to Company a worldwide, royalty-free, non-exclusive license to use the Customer Art, as well as Customer’s corporate and/or trade name, for purposes of fulfilling its obligations hereunder.
3.3 Notwithstanding anything to the contrary, Company shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data, End User Data, and data derived therefrom). By making any End User Data or Customer Data available to Company, Customer hereby grants to Company (a) a non-exclusive, non-transferable, royalty-free license, with the right to use such End User Data and Customer Data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (b) a non-exclusive, perpetual, irrevocable, transferable, worldwide, royalty-free license to use, disclose, distribute, reproduce, modify, and create derivative works from such End User Data and Customer Data in aggregated, anonymized form for all purposes in connection with Company’s business. Company does not claim any ownership rights in any such End User Data or Customer Data and nothing in this Agreement will be deemed to restrict any rights that User may have to use and exploit any such End User Data or Customer Data. No rights or licenses are granted except as expressly set forth herein.
4) PAYMENT OF FEES
4.1 Customer will pay Company the then applicable Fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department. Customer shall owe all Fees due hereunder unless this Agreement is terminated in accordance with Section 5.1 and Section 5.2. Company shall not refund any Fees paid by Customer.
4.2 Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
5) TERM AND TERMINATION5.1 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, if Company is in possession of any Customer Data, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6) WARRANTY AND DISCLAIMER6.1 Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. PRIOR TO USING ANY LEASE TEMPLATE(S) PURCHASED UNDER THIS AGREEMENT, SUCH LEASE TEMPLATE(S) SHOULD BE REVIEWED BY AN ATTORNEY LICENSED TO PRACTICE IN THE JURISDICTION WHERE CUSTOMER INTENDS TO USE THE LEASE TEMPLATE, AND CUSTOMER ACKNOWLEDGES AND AGREES THAT BY MAKING AVAILABLE THE LEASE TEMPLATES, COMPANY IS NOT PROVIDING LEGAL ADVICE OF ANY KIND TO CUSTOMER
7) INDEMNITY7.1 Company shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
7.2 Customer shall indemnify and hold Company harmless from indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) resulting from (i) the Customer Data; (ii) the End User Data; (iii) any alleged breach of the End User Terms; (iv) Customer’s use of the Services in violation of the restrictions set forth in Section 2 of this Agreement or applicable law; or (v) any claim or dispute related to Customer’s business, products, services, including without limitation any alleged breach by the Customer of any agreement with an End User.
8) LIMITATION OF LIABILITYNOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9) PUBLICITYCustomer acknowledges and agrees that Company may publicly disclose that Customer is a client of Company. Customer further agrees that Company may display Customer’s logos, promotional graphics, and related marketing designs (the “Client Art”) on Company’s websites and on sales and marketing materials, and hereby grants to Company a worldwide, royalty-free, non-exclusive license to use the Client Art, as well as Customer’s corporate and/or trade name, for such purposes. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions.