Loyalsnap Texting - Terms of Use

OVERVIEW

 

Loyalsnap’s various services are offered to customers on a self-serve basis. You are responsible for ensuring that the use of Loyalsnap’s services with your products and services is appropriate and legal. From time to time we may decide to supply you with information, procedures, and/or checklists of some practices for you to consider in planning and executing your programs. This may include Loyalsnap offering Licensee a solution to obtain express written consent from Subscribers via Mobile Message (both as defined below). You understand and acknowledge that such information, procedures or checklists are not a substitute for you obtaining your own legal advice; and that pursuant to the representations and warranties in this Agreement (defined below), you are responsible for obtaining express written consent from Subscribers to receive Mobile Messages.

 

NOTICE: THIS CONTRACT INCLUDES INDEMNITIES TO THE LOYALSNAP PARTIES (DEFINED BELOW) FROM LICENSEE (DEFINED BELOW), A LIMITATION OF LICENSEE'S RIGHTS AND REMEDIES, BINDING ARBITRATION OF CLAIMS AND WAIVING THE RIGHT TO TRIAL BY JURY.

 

LICENSE AND SERVICES AGREEMENT

 

Loyalsnap, Inc. ("Loyalsnap," "we" or "us") owns a proprietary automation platform which enables communication between third party application program interfaces (API) to extract information about Subscribers that allows Loyalsnap's clients to send certain Mobile Messages ("Loyalsnap Platform"). This Loyalsnap License and Services Agreement ("Agreement") sets forth the terms and conditions by which Loyalsnap permits you ("Licensee") to access and utilize certain technologies provided by Loyalsnap, including, without limitation, the Loyalsnap Platform (collectively, "Loyalsnap Services").

 

In some instances, a written document (each, a "Statement of Work") will further describe the Loyalsnap Services and the applicable Fee (defined in Section 8 below) and will be effective when signed by an authorized representative of both parties. Each Statement of Work will be governed by the terms of this Agreement and such Statement of Work is incorporated herein by this reference. In the event there is a conflict between this Agreement and a Statement of Work, this Agreement will control unless otherwise expressly set forth in the Statement of Work naming the section to be amended in that instance. No Licensee purchase orders, invoices or other business forms will modify, supersede or otherwise alter the terms of this Agreement or a Statement of Work.

 

Also, in some instances, this Agreement and separate agreements or terms of use that set forth additional conditions, rights and obligations ("Additional Agreements") will apply to Licensee's relationship with Loyalsnap. To the extent there is a conflict between this Agreement and any Additional Agreements, this Agreement will control unless the applicable Additional Agreement expressly states that it will control over this Agreement. No Licensee purchase orders, invoices or other business forms will modify, supersede or otherwise alter the terms of an Additional Agreement.

 

  1. Definitions. The following definitions apply to this Agreement:

1.1       "Carrier" means a wireless telecommunications carrier that makes Mobile Messages (defined below in Section 1.5) available to its Subscribers (defined below in Section 1.7).

 

1.2       "Distributor" means any third party that is billing Subscribers for access to Mobile Messages or directly providing Mobile Messages to Subscribers, including, without limitation, Carriers and text message aggregators.

 

1.3       "Licensee Application" means a software application licensed by or on behalf of Licensee that interacts with the Loyalsnap Platform, including, without limitation the Third-Party Platforms (defined below).

 

1.4       "Licensee Content" means all information, data, text, visuals, graphics, artwork, animation, video content, audio content, photographs or other content or materials, including any updates thereto, and where applicable, any source code comprised therein, provided by Licensee (or one of its agents, representatives or affiliates) and incorporated into a Licensee Application, or Mobile Message.

 

1.5       "Mobile Message" means all SMS, MMS and other messages consisting of Licensee Content, which are distributed and made available to Subscribers by Distributors.

 

1.6       "Third-Party Platforms" means any platform in which Licensee is a subscriber and that interacts with the Loyalsnap Platform, including, without limitation Mindbody and Text Magic.

 

1.7       "Subscriber" means a wireless carrier account holder and owner of a wireless device associated with the account that sends or receives Mobile Messages.

 

1.8       "Subscriber Data" means all personally identifiable information and non-personally identifiable information from or about Subscribers, including, without limitation information related to Subscribers' access to and use of the Mobile Messages, Subscribers' payment history such as payment date, dollar amount and item/service purchased (excluding financial/bank/credit card information), Subscribers' mobile telephone numbers and Mobile Message usage patterns, Subscribers' schedule of classes at Licensee's facilities and attendance, and Subscribers' birth dates, gender, emergency contact information, address, and ZIP Code.

  1. Licenses.

a. Licensee's Limited License to the Loyalsnap Platform. To the extent that Licensee uses the Loyalsnap Platform, the following applies:

 

(i) Loyalsnap grants Licensee a limited, nonexclusive, royalty free, revocable, nontransferable license during the Term to use the Loyalsnap Platform solely to run Licensee Applications ("Permitted Loyalsnap Platform Use"). The previous sentence notwithstanding, Licensee understands that its access to the Loyalsnap Platform will be subject to Loyalsnap’s sole control and, accordingly, Loyalsnap may limit or terminate Licensee’s access to the Loyalsnap Platform at any time without notice to Licensee and without liability for Loyalsnap.

 

(ii) Loyalsnap may (in its sole discretion) provide to Licensee confidential information to enable a Licensee Application to access Loyalsnap’s application server for the Permitted Loyalsnap Platform Use ("Loyalsnap Platform Access Information"). Licensee will comply with any documentation provided by Loyalsnap in connection with implementing the Loyalsnap Platform. Licensee agrees that it will not share the Loyalsnap Platform Access Information with any third party, other than as permitted by Loyalsnap in writing; or (ii) use or permit use of the Loyalsnap Platform or content made available by Loyalsnap in any way that is excessive or abusive of Loyalsnap bandwidth or other Loyalsnap resources, or in any other way not expressly permitted or granted under this Agreement.

b. Restrictions. Licensee agrees that it will not modify or permit or assist any other party to modify any part of the Loyalsnap Platform in any manner whatsoever or otherwise make copies of all or part of the Loyalsnap Platform onto any media, except with the express prior written consent of Loyalsnap, which Loyalsnap may withhold in its sole discretion. Licensee further agrees that it will not, and will not permit or assist any other party to, disassemble, decompile or reverse engineer all or any part of the Loyalsnap Platform.

c. License to Licensee Application and Licensee Content. Licensee grants to Loyalsnap a royalty-free, fully paid up, transferable, worldwide right and license during the Term to incorporate, reproduce, digitize, adapt, modify, format, transmit, distribute, publicly perform, publicly display and otherwise use the Licensee Content and all Licensee Applications to perform the Loyalsnap Services.

d. Loyalsnap License to Licensee User Data. As between Loyalsnap and Licensee, Licensee is the owner of personally identifying Subscriber Data that it provides to Loyalsnap or that Subscribers provide to Loyalsnap when signing up to receive Mobile Messages from Licensee, including, without limitation, the Subscribers mobile phone numbers ("Licensee User Data"). Licensee grants to Loyalsnap a royalty-free, fully paid up, transferable, worldwide right and license to store, use and transfer the Licensee User Data to provide the Loyalsnap Services. In addition, for data derived from Licensee User Data but rendered non-personally identifiable, Licensee grants to Loyalsnap a perpetual, royalty-free, fully paid up, transferable, worldwide right and license to use, store and transfer for any and all purposes, including, without limitation, for research and to help improve Loyalsnap's services.

 

  1. Ownership of Loyalsnap Platform and Loyalsnap Materials. Licensee acknowledges and agrees that, as between Licensee and Loyalsnap, Loyalsnap owns and will retain all rights, title and interest in and to:

 

(i) the Loyalsnap Platform, any and all versions and updates made to the Loyalsnap Platform and all source code, object code and similar materials embodied therein; and

 

(ii) all information and materials provided by Loyalsnap to Licensee in connection with the Loyalsnap Services, including, without limitation, all trade secrets, financial data, tools, software, concepts, methodologies, inventions, patterns, algorithms, techniques, know-how, formats, engines, modules, applications, controls, data, and other content, regardless of whether such materials were created or developed prior to or during the Term (collectively, 3(i) and 3(ii) the "Loyalsnap Materials"). To the extent Licensee obtains any rights in the Loyalsnap Materials due to the performance of its obligations under this Agreement, Licensee hereby irrevocably assigns to Loyalsnap all rights, title and interest in the Loyalsnap Materials.

 

  1. Licensee Acknowledgments and Warranties. Licensee acknowledges and warrants that:

a. In each and every instance, Licensee is the sender of the Mobile Messages and is fully responsible for the Mobile Messages. Licensee expressly understands and agrees that Loyalsnap is solely providing a system and technological solution for Licensee to send Mobile Messages through Third-Party Platforms. Licensee is solely responsible for all compliance with (i) all applicable laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities including, without limitation, the Telephone Consumer Protection Act ("TCPA") (collectively, "Laws") and (ii) all applicable Carrier and industry guidelines, including, without limitation, the then-current version of the CTIA Short Code Monitoring Program Handbook and Mobile Marketing Association’s Consumer Best Practices Guidelines and any applicable self-regulatory guidelines applicable to the content or distribution of a Mobile Message (collectively, "Industry Guidelines"). Accordingly, and in no way limiting the foregoing, Licensee represents and warrants that it is in full compliance with the TCPA connected with Licensee's use of the Loyalsnap Platform and Loyalsnap Services and each and every Licensee Mobile Message, Mobile Message campaign, and advertisement related thereto, including, without limitation, providing all necessary disclosures and obtaining all required consent, notwithstanding any automation implemented through the Loyalsnap Platform or Loyalsnap Services, or any advice, recommendations or systems provided to Licensee by Loyalsnap to assist Licensee in complying with Laws or Industry Guidelines.

b. The Licensee Content will not violate, misappropriate or infringe upon any copyright, patent, trade secret, trade identity, or any personal, moral, literary, privacy, publicity or other intellectual property or proprietary right.

c. The Licensee Content will not cause Loyalsnap to violate any Laws or Industry Guidelines.

d. Licensee will not authorize the transmission of Mobile Messages to a Subscriber and will not provide Loyalsnap with Subscriber Data unless the recipient Subscriber has expressly consented and agreed (in accordance with Laws and Industry Guidelines) to receive the Mobile Message and the Licensee Content contained therein and has not subsequently withdrawn his/her consent.

e. Licensee will access and use the Loyalsnap Services and the Loyalsnap Materials only as authorized by Loyalsnap, and not by fraudulent means or activities such as by robot, spider or scraper.

f. Licensee will not bypass any robot exclusion headers (including using any device, software, or routine to accomplish that goal) contained in the Loyalsnap Materials or the Loyalsnap Services, or interfere or attempt to interfere with the proper working of the Loyalsnap Materials or the Loyalsnap Services. Licensee will not take any action that imposes an unreasonable or disproportionately large load on the Loyalsnap Materials or the Loyalsnap Services, including, without limitation, on Loyalsnap’s servers, as determined by Loyalsnap in its sole discretion.

g. Licensee has the right to enter into this Agreement and to perform its obligations under this Agreement.

h. Licensee has the right to grant to Loyalsnap the licenses granted by it in this Agreement.

i. Licensee will not transfer or otherwise share consumer financial information with Loyalsnap, including without limitation, bank, credit card or debit card information.

j. By entering into this Agreement and performing its obligations under this Agreement, Licensee does not and will not violate, conflict with, breach, default or otherwise adversely affect any agreement, right or obligation existing between Licensee and any other person, firm or entity.

k. Licensee will not transmit any materials via or using the Loyalsnap Services, Loyalsnap Materials (including, without limitation, the Loyalsnap Platform), Licensee Applications, or the Licensee Materials that:

(i)        is or may be inaccurate, false, incomplete, patently offensive, illegal, tortious, pornographic, obscene, sexually explicit or potentially dangerous or harmful, including, without limitation, content that is harmful to minors;

(ii)       constitutes false advertising or unfair trade or deceptive practices;

(iii)      threatens, harasses, intimidates or abuses others;

(iv)      promotes violence or describes how to perform a violent act;

(v)       includes any negative comments that are connected to race, national origin, gender, sexual preference or physical handicap;

(vi)      promotes any illegal activity;

(vii)     defames, libels, ridicules, or disparages anyone, including, without limitation, any materials that affect the reputation of, embarrass or libel Loyalsnap or Loyalsnap’s clients, directors, principals, representatives, agents, employees, successors, assigns, licensors or licensees;

(viii)    solicits participation in or raises money for a pyramid or other multi-tiered marketing scheme; or

(ix)      interferes with or circumvents any security feature of the Loyalsnap Services or the Loyalsnap Materials or any feature that restricts or enforces limitations on use of or access to the Loyalsnap Services or the Loyalsnap Materials.

l. Licensee understands that Loyalsnap may modify, improve, update or upgrade the Loyalsnap Services and the Loyalsnap Platform, including without limitation, the "look and feel" of the Loyalsnap Services, at its sole discretion and at any time and that Licensee will adopt any such modifications, improvements, updates or upgrades as required by Loyalsnap.

 

  1. Audit Rights. Loyalsnap reserves the right to periodically audit and review the contents of the Licensee Applications, Licensee Content, Mobile Messages, Third-Party Platforms or Subscriber Data to ensure compliance with the terms and conditions of this Agreement and any Statements of Work and Additional Agreements.

 

  1. Costs. Except for any costs expressly assumed by Loyalsnap in writing, Licensee will be solely responsible for all costs and expenses relating to the exercise of its rights and performance of its obligations under this Agreement. Licensee, for example, will at its sole cost and expense: (a) operate and maintain the Licensee Application(s); and (b) be solely responsible for the acquisition, installation, configuration, implementation, operation, and maintenance of all information processing equipment, software, communications, and other resources and facilities necessary to utilize the Loyalsnap Services and the Loyalsnap Materials.

 

  1. Suspension. In addition to the Loyalsnap’s right to terminate as detailed in Section 10 below, Loyalsnap may suspend Licensee’s rights to use or make available the Loyalsnap Services or the Loyalsnap Materials at any time without liability and without providing prior notice to Licensee ("Suspension"). Loyalsnap will not charge Licensee for the time period of the Suspension (on a daily pro-rata basis derived from on the Fee) and Loyalsnap will provide notice to Licensee within five (5) business days of the Suspension with a description of the Suspension. Licensee agrees that Loyalsnap will have thirty (30) days to lift the Suspension and continue providing Services, and if Loyalsnap does not lift the Suspension in such timeframe, Licensee will have the right to terminate this Agreement.

 

  1. Fees and Taxes. Loyalsnap may charge a fee ("Fee") in exchange for providing the Loyalsnap Services and the Loyalsnap Materials and it reserves the right to require payment of all Fees in full prior to providing the Loyalsnap Services. Licensee agrees to pay the applicable Fee and authorizes Loyalsnap and its authorized agents to process all charges incurred by Licensee. Licensee agrees that it will be solely responsible for the payment of all federal and state taxes, excluding taxes attributable to Loyalsnap’s gross income, in connection with the Loyalsnap Services and agrees that it will reimburse Loyalsnap for all such taxes to the extent they are not included in the Fee.

 

  1. Confidentiality. The parties acknowledge that during the term of this Agreement, they will have access to and will become familiar with Confidential Information (defined below) of the other party. The receiving party agrees that the Confidential Information disclosed and to be disclosed by the disclosing party is confidential and proprietary to the disclosing party and constitutes a valuable asset. The receiving party agrees to retain the Confidential Information in strict confidence, and not to disclose, publish or use the Confidential Information except as may be required by law, or to permit the Confidential Information to be disclosed to or used by any individuals, except those persons employed or contracted by the receiving party who have a need to know such information.

 

In the event that either party is required by law or court order to disclose any Confidential Information of the other party, the receiving party shall (i) promptly notify the disclosing party in writing and in no event later than five (5) business days prior to any such disclosure, (ii) cooperate with the disclosing party to preserve the confidentiality of such Confidential Information consistent with applicable law and (iii) use best efforts to limit any such disclosure to the minimum disclosure necessary to comply with such law or court order.

 

As used herein, the term “Confidential Information” shall mean any information that is designated in writing as confidential by the disclosing party or should otherwise be reasonably understood to be confidential based on the circumstances of its disclosure, including, but not limited to, technical knowledge, computer programs, trade secrets, business processes, manufacturing processes, business plans, inventions, techniques, data of any kind, drawings, customer lists, financial statements, sales data, proprietary business information of any sort, research or development projects or results, tests, and / or any non-public information which concerns the business, operations, ideas or plans of either party and conveyed to the receiving party by any format or means including, but not limited to, written, typed, magnetic, or orally transmitted. Loyalsnap’s Confidential Information also includes Loyalsnap Materials (including, without limitation, the Loyalsnap Platform) and Loyalsnap Platform Access Information. Confidential Information does not include the following types of information: (1) information available to the public through no wrongful act of the receiving party; (2) information which has been published; (3) information that was lawfully known to receiving party without any obligation of confidentiality prior to disclosure by the disclosing party, or (4) information which has been independently developed by the receiving party without use of the disclosing party’s Confidential Information.

 

  1. Term, Termination and Effect of Termination.

 a. Term. This Agreement is effective as of the date in which Licensee accepts this Agreement, and will continue in full force and effect until terminated pursuant to Section 10(b) below ("Term").

b. Termination. Loyalsnap may terminate this Agreement in its sole discretion upon providing five (5) days written notice to Licensee or immediately if a change in law or interpretation of law requires so (in Loyalsnap’s sole discretion). Loyalsnap may also terminate this Agreement at any time, without notice to Licensee, based on Licensee’s actual or alleged breach of this Agreement. Licensee may terminate this Agreement upon providing thirty (30) days written notice to Loyalsnap.

c. Effect of Termination. Upon termination of this Agreement or expiration of the Term:

(i) Licensee’s right to use the Loyalsnap Services and the Loyalsnap Materials will immediately terminate.

(ii) Licensee will delete any and all Loyalsnap Materials in its possession and will no longer have any right to use or possess the Loyalsnap Materials. To evidence such destruction and removal, Licensee will provide Loyalsnap, upon Loyalsnap’s request, with an affidavit signed by an authorized officer of Licensee confirming such facts.

(iii) Loyalsnap will have the right, in its sole discretion, to delete or otherwise destroy any and all Licensee information, including, without limitation the Licensee User Data, fifteen (15) days after such termination or expiration of the Term.

 

In the event of termination, Licensee will be obligated to pay Loyalsnap any outstanding Fees due under this Agreement, or any Statements of Work or Additional Agreements as of the effective date of termination.

 

  1. Disclaimer of Warranties. LICENSEE UNDERSTANDS THAT THE MOBILE MESSAGES ARE NOT AVAILABLE ON ALL WIRELESS CARRIERS AND WIRELESS DEVICES. THE LOYALSNAP SERVICES, THE LOYALSNAP MATERIALS AND THE MOBILE MESSAGES ARE PROVIDED "AS IS," "AS AVAILABLE," AND "WITH ALL FAULTS." LICENSEE FURTHER UNDERSTANDS AND AGREES THAT THE LOYALSNAP SERVICES AND THE LOYALSNAP MATERIALS MAY BE TEMPORARILY UNAVAILABLE FOR SCHEDULED MAINTENANCE OR FOR UNSCHEDULED EMERGENCY MAINTENANCE, EITHER BY LOYALSNAP OR BY THIRD-PARTY PROVIDERS, OR BECAUSE OF OTHER CAUSES BEYOND LOYALSNAP’S REASONABLE CONTROL WITHOUT NOTICE TO LICENSEE AND WITHOUT LIABILITY FOR LOYALSNAP. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, LOYALSNAP AND LOYALSNAP’S DIRECTORS, PRINCIPALS, REPRESENTATIVES, AGENTS, EMPLOYEES, SUCCESSORS, ASSIGNS, AND LICENSEES (COLLECTIVELY, THE "LOYALSNAP PARTIES") MAKE NO REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER ABOUT: (A) THE LOYALSNAP SERVICES; (B) THE MOBILE MESSAGES; (C) THE LOYALSNAP MATERIALS; (D) THE ABILITY OF THE LOYALSNAP SERVICES, THE MOBILE MESSAGES OR THE LOYALSNAP MATERIALS TO WORK WITH ANY PARTICULAR HARDWARE, SOFTWARE, NETWORK, DATA, TELECOMMUNICATIONS EQUIPMENT, PLATFORM OR CARRIER; (E) WHETHER OR NOT THE LOYALSNAP SERVICES OR THE LOYALSNAP MATERIALS WILL BE COMPATIBLE WITH AND/OR OPERATE WITH ANY OTHER HARDWARE, SOFTWARE, NETWORK, DATA, TELECOMMUNICATIONS EQUIPMENT OR CARRIER NOW OR LATER CONTEMPLATED, INCLUDING, WITHOUT LIMITATION, WATER MARKING, ENCRYPTION, AND/OR ANY OTHER SOFTWARE THAT MAY BE EMBEDDED IN OR USED IN CONJUNCTION WITH THE LOYALSNAP SERVICES, THE LOYALSNAP MATERIALS (INCLUDING, WITHOUT LIMITATION, THE LOYALSNAP PLATFORM); OR (F) ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION THROUGH THE LOYALSNAP SERVICES, THE MOBILE MESSAGES, THE LOYALSNAP MATERIALS OR TELECOMMUNICATIONS EQUIPMENT. LOYALSNAP DOES NOT WARRANT THAT THE LOYALSNAP SERVICES, THE MOBILE MESSAGES OR THE LOYALSNAP MATERIALS WILL BE COMPLETE, ACCURATE, UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE LOYALSNAP SERVICES, THE MOBILE MESSAGES OR THE LOYALSNAP MATERIALS OR THE SERVERS THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

 

LOYALSNAP DOES NOT REPRESENT OR WARRANT THAT LICENSEE’S ACTIVITIES OR USE OF THE LOYALSNAP SERVICES, THE MOBILE MESSAGES OR THE LOYALSNAP MATERIALS IS LAWFUL IN ANY PARTICULAR JURISDICTION AND, IN ANY EVENT, SPECIFICALLY DISCLAIMS SUCH WARRANTIES. LICENSEE UNDERSTANDS THAT BY ACCESSING OR USING THE LOYALSNAP SERVICES OR THE LOYALSNAP MATERIALS IT ACTS AT ITS OWN RISK AND LICENSEE REPRESENTS AND WARRANTS THAT LICENSEE'S ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE IT ACCESSES OR USES THE LOYALSNAP SERVICES, THE LOYALSNAP PLATFORM, OR LOYALSNAP MATERIALS. FURTHER, THE LOYALSNAP PARTIES DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.

 

  1. Indemnification & Limitation of Liability.

 

Licensee agrees to defend, indemnify and hold the Loyalsnap Parties from and against any and all claims, damages, costs, investigations, liabilities, judgments, settlements and expenses, including attorneys’ fees, that directly or indirectly arise from or are otherwise directly or indirectly related to: (a) Licensee Content; (b) use of the Loyalsnap Services; (c) Licensee’s breach (actual or alleged) or anticipatory breach of this Agreement (including, without limitation, any non-compliance or violation of Laws or Industry Guidelines); (d) any security breach of Licensee or the Third-Party Platforms; or (e) any misrepresentation made by Licensee. Licensee will cooperate as fully required by Loyalsnap in the defense of any claim. Loyalsnap reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by Licensee, and Licensee will not in any event settle any claim without the prior written consent of a duly authorized Loyalsnap signatory.

 

THE LOYALSNAP PARTIES WILL NOT BE LIABLE FOR LICENSEE’S OR A SUBSCRIBER’S USE OF OR ACCESS TO THE LOYALSNAP SERVICES, THE MOBILE MESSAGES OR THE LOYALSNAP MATERIALS; THE FAILURE OF A MOBILE MESSAGE TO REACH ANY OR ALL INTENDED SUBSCRIBERS; OR ANY DAMAGE TO ANY HARDWARE, SOFTWARE, NETWORK, DATA OR TELECOMMUNICATIONS EQUIPMENT, INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE, LOSS OF SUBSCRIBER DATA, LICENSEE USER DATA OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION.

 

UNDER NO CIRCUMSTANCES WILL THE LOYALSNAP PARTIES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, ECONOMIC, PUNITIVE OR CONSEQUENTIAL DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE, OR THE PERFORMANCE OF, THE LOYALSNAP SERVICES, THE MOBILE MESSAGES OR THE LOYALSNAP MATERIALS OR ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY LOYALSNAP OR LAW ENFORCEMENT AUTHORITIES REGARDING LICENSEE’S USE OF THE LOYALSNAP SERVICES, THE MOBILE MESSAGES OR THE LOYALSNAP MATERIALS, EVEN IF FORESEEABLE OR IF LOYALSNAP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER IN AN ACTION BASED IN TORT, CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHERWISE. IN NO EVENT WILL LOYALSNAP'S TOTAL LIABILITY TO LICENSEE FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED THE FEE LOYALSNAP HAS CHARGED LICENSEE (IF ANY) DURING THE MONTH IN WHICH THE ALLEGED DAMAGE, LOSS, OR CAUSE OF ACTION WAS INCURRED OR U.S. $10.00, WHICHEVER AMOUNT IS GREATER.

 

LICENSEE RECOGNIZES AND CONFIRMS THAT IN THE EVENT LICENSEE INCURS ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF LOYALSNAP’S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO LICENSEE ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE LICENSEE TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY PROPERTY, PRODUCT OR SERVICE OWNED OR CONTROLLED BY THE LOYALSNAP PARTIES, AND LICENSEE WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY SUCH PROPERTY, PRODUCT OR SERVICE OR ANY AND ALL ACTIVITIES OR ACTIONS RELATED THERETO.

 

  1. Miscellaneous.

a. Consumer Disclosures. Loyalsnap may provide Licensee suggested consumer disclosures for: (i) Licensee Applications; (ii) the Mobile Messages; and/or (iii) materials that advertise or promote the Licensee Applications or Mobile Messages. Licensee agrees that any such disclosures provided by Loyalsnap are not a substitute for Licensee obtaining its own legal advice and does not affect Licensees indemnification or other obligations in this Agreement or Loyalsnap’s rights.

b. Independent Contractor. It is understood and agreed that Loyalsnap is acting as an independent contractor in the performance of the Loyalsnap Services, and nothing herein contained shall be deemed to create an agency relationship between Loyalsnap and Licensee.

c. Credit. Licensee agrees that references to one or more of Loyalsnap’s trade identities, including, without limitation, the language "Powered by Loyalsnap," may appear in any products or services that are part of the Loyalsnap Services in a size and location determined by Loyalsnap in its sole discretion.

d. Marketing. Licensee agrees that Loyalsnap will have a limited, non-transferable, non-exclusive, royalty-free, fully paid, worldwide license to use Licensee’s name and logo and any quotes or statements made by Licensee regarding the Loyalsnap Services in connection with Loyalsnap’s corporate and external communications, including, without limitation, in press releases; product brochures and other marketing materials; and financial reports. Licensee further agrees that the aforementioned uses may include a reference to Licensee as a Licensee of Loyalsnap and a user of the Loyalsnap Services.

e. Entire Agreement. This Agreement contains the sole and entire agreement between the parties with respect to the subject matter of this Agreement and supersede any and all other prior or contemporaneous written or oral agreements pertaining thereto. No oral statement of any Loyalsnap representative or employee will, in any manner or degree, modify or otherwise affect this Agreement. No Loyalsnap purchase orders, invoices or other business forms will modify, supersede or otherwise alter this Agreement unless expressly stated in the applicable purchase order, invoice or other business document.

f. Governing Law and Disputes. This Agreement will be construed and enforced in accordance with the laws of the State of New York, without regard to its conflicts of law principles and will specifically not be governed by the United Nations Conventions on Contracts for the International Sale of Goods, if otherwise applicable. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be exclusively determined by arbitration in the City of New York, before a single arbitrator. In arbitration, there is no judge or jury and review is limited. The arbitration shall be administered by JAMS Inc. (“JAMS”) (or any successor to JAMS) pursuant to its Comprehensive Arbitration Rules and Procedures. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude either party from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.

g. Assignment. Licensee may not transfer or assign its rights or obligations under this Agreement to any third party (including its parent, subsidiary or affiliate), including, without limitation, any transfer or assignment by way of merger, consolidation, sale of all or substantially all of its assets, without the prior written consent of Loyalsnap. Loyalsnap may freely assign its rights and obligations under this Agreement to any third party (including its subsidiary or affiliate).

h. Successors & Assigns. Subject to Section 13(g) above, this Agreement is binding upon and will inure to the benefit of the parties hereto and their respective assignors, predecessors in interest, successors, assigns, heirs and personal representatives.

i. Severability. If any provision of this Agreement is held to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement otherwise remains in full force and effect and enforceable.

j. Force Majeure. Loyalsnap will not be liable for delay or default in the performance of its obligations under this Agreement or any Statements of Work or Additional Agreements if such delay or default is caused by conditions beyond its reasonable control, including but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or third party labor disputes.

k. Waiver. No waiver by either party of any performance of the other party required under this Agreement or any default of either under the terms of this Agreement will constitute or imply, whether by passage of time or otherwise, any further waiver of any other performance or default.

l. Subpoenas. In the event that Loyalsnap or any of its employees, agents or subcontractors is served with or becomes subject to any subpoena in a legal proceeding to which Licensee is a party and that subpoena seeks disclosure of materials or information related to the goods, services, information or deliverables that Loyalsnap provides to Licensee hereunder, then Licensee shall reimburse Loyalsnap for all direct and documented costs and expenses charged by a third party for Loyalsnap to comply with such a subpoena, including without limitation, reasonable attorney’s fees and costs related thereto.