Womply Terms of Service
PLEASE READ THIS DOCUMENT CAREFULLY BEFORE USING ANY OF THE SERVICES.
THIS WOMPLY TERMS OF SERVICE is a legal agreement (the “Agreement”). Womply’s applications, products, services, features, technologies, content, or website (collectively the “Services”) are available only to users who can form legally binding contracts under applicable law. By using the Services, You represent and warrant that You are: (i) at least eighteen (18)
years of age, (ii) otherwise recognized as being able to form legally binding contracts under applicable law, and (iii) are not a person barred from purchasing or receiving the Services under the laws of the United States or other applicable jurisdiction.
The Agreement is between You, meaning individual users, referred to individually and collectively as “You,” “Your,” or “user” whether or not capitalized) and Oto Analytics, Inc. (referred to as “Womply,” “we,” “our,” or “us,” whether or not capitalized) governing Your use of the Services.
If You are entering into this Agreement on behalf of a business or corporate entity, You represent and warrant that You have the legal authority to bind such entity to the terms and conditions contained in this Agreement, in which case the terms "You", "Your", "User", or "Customer", whether or not capitalized, shall refer to such entity. If, after Your acceptance of this Agreement, Womply finds that You do not have the legal authority to bind such corporate
entity, You will be personally responsible for the obligations contained in this Agreement, including, but not limited to, the payment obligations. Womply shall not be liable for any loss or damage resulting from Womply’s reliance on any instruction, notice, document or communication reasonably believed by Womply to be genuine and originating from You, as an authorized representative of the business or corporate entity. If there is reasonable doubt
about the authenticity of any such instruction, notice, document or communication, Womply reserves the right, but undertakes no duty, to require additional authentication or suspend or terminate Your use of the Services, at our sole discretion.
BY REGISTERING FOR AN ACCOUNT, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY AND ARE A PARTY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. USE OF THE SERVICE IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF
THE AGREEMENT, DO NOT REGISTER FOR AN ACCOUNT.
1. Womply Account.
1.1 Registration. You must register through Womply’s online registration portal to create an account that will enable you to use the Services (“Womply Account”). During registration, You will need to include Your name and information when prompted including contact information. You agree to provide true, accurate, current, and complete information during registration and update us if there are any changes to the information. Womply reserves the right to seek additional information from You at any time. Furthermore, You agree to cooperate with Womply in connection with the performance of this Agreement and provision of the Services, by making available such personnel and information as may be reasonably required, and taking
such other actions as Womply may reasonably request. We reserve the right to suspend or terminate Your Womply Account and/or use of the Services if You provide inaccurate, untrue, or incomplete information, or fail to comply with other Womply Account requirements. To the fullest extent permissible by applicable law, You acknowledge and agree that Womply will have no liability associated with or arising from Your failure to maintain accurate Womply Account information, including Your failure to receive important information and updates about the Services.
1.2 Womply Account Credentials. As a part of Your Womply Account registration, You are required to establish a username and password. These pieces of data are used to authenticate You when You use the Services. You are responsible for protecting the confidentiality of Your username and password. You agree to notify Womply immediately of any unauthorized use of Your user name or password or any other actual or potential security breach relating to Your Womply Account.
1.3 Use of Services. Subject to the terms and conditions of this Agreement, including timely payment of applicable fees, Womply grants You a limited, non-exclusive, non-sublicenseable, non-transferrable right to access and use the Services in the United States of America. The Services are subject to modification, restriction, or suspension at Womply’s sole discretion for any purpose deemed appropriate by Womply.
2.1 Agreement Changes. Womply reserves the right, in its sole discretion, to modify this Agreement at any time by sending You written notice by E-mail Notification. You are responsible for reviewing and becoming familiar with any modifications reflected in such notice. If Womply makes a material change to the Agreement in accordance with the foregoing, You may terminate Your use of the Services with written notice to Womply. In order to terminate this Agreement, You must provide written notice to Womply by e-mail, which must
be received within five (5) business days following the date of Womply’s notice to You of a material change. For the purposes of this Agreement, E-mail Notification shall mean an e-mail message transmitted by Womply to You to Your most current e-mail address saved in your Womply Account.
2.3 Effect of Termination for Material Change. Termination of Your Womply Account will be effective at the end of the month in which Womply receives the termination notice (“Effective Termination Date”). As the Effective Date of Termination occurs at the end of the month in which Womply receives Your termination notice, there will be no: (i) refund, partial or whole, of amounts paid for Prepaid Fees; or, (ii) credit, partial of whole, of Fees Payable in Arrears. Termination of Your Womply Account is Your sole and exclusive remedy for any material changes made to the Agreement by Womply. Use of the Services beyond the effective date of any revision of this Agreement constitutes Your acceptance of the terms and conditions of this Agreement as modified, unless You’ve provided timely notice of termination to Womply, in
which case use of the Service beyond the Effective Termination Date shall constitute Your acceptance of the terms and conditions of this Agreement as modified.
3. General Payment Terms.
3.1. Fees. If You use a Service that is provided for a fee, You agree to pay the fee that is quoted to You. The fee may be charged directly by Womply or by Your Card Services Provider, as applicable. Prepaid Fees are due on the first calendar day of the month or first day of a given payment period (as applicable), and Fees Payable in Arrears are due on the last calendar day of
3.2 Payment to Womply. If You use a Service for which You pay fees directly to Womply, You are required to select a payment plan and provide accurate information regarding Your credit card, ACH or other acceptable payment instrument. You hereby authorize Womply to initiate transaction entries to Your depository account(s) or payment cards for all amounts due to Womply under this Agreement (“Automatic Payments”). This authority shall remain in full force and effect until Womply receives notification from You to terminate the Automatic Payments and Womply has been afforded a commercially reasonable opportunity to act upon the request. If Your payment instrument information changes, You shall promptly update the information in Your Womply Account. Entries initiated to or from Your depository account will
be in accordance with the rules of the National Automated Clearing House Association (NACHA) and/or any other regulatory body or agency having jurisdiction over the subject matter hereof. You may cancel Your Automatic Payments by calling us at 855-929- 9111.
3.3 Payment to Card Services Provider. If You use a Service for which fees are paid by You to the Card Services Provider, the terms and conditions governing payment of fees for Services shall be as set forth in Your Merchant Services Agreement.
3.4 Fee Disputes. If You dispute any fees, You must notify Womply within thirty (30) days of You incurring such fees (“Dispute Period”). All amounts that are not disputed within the Dispute Period shall be deemed valid, due and payable.
3.5 Pricing Changes. Womply reserves the right to change fees for the Services at any time by providing You with E-mail Notification at least thirty (30) days prior to the effective date of any such price change. Your use of the Services after the effective date of a price change constitutes Your acceptance of the price change.
3.6. Late Payment. Fees that remain unpaid more than thirty (30) days past their due dates are subject to a late fee of 1.5% per month, or the maximum amount permitted by law, whichever is lower, plus all expenses of collection. You shall be responsible for all taxes associated with Services other than U.S. taxes based on Womply’s net income. Failed payments including Automated Clearing House (“ACH”) rejections or insufficient funds rejections will be
subject to a returned payment fee of twenty-five dollars (US $25) per attempt.
3.7. Payment Errors. Womply is not responsible for any payment processing errors or fees or other Services-related issues, including those issues that may arise from inaccurate payment account information or errors by third-party billing services.
4. User Data
4.1 Required Data. To use the Services, You may be required to provide to Womply, directly or indirectly, the following types of data, which shall be referred to collectively as User Data: (a) information about You and Your account with Your Card Services Provider that Your Card Services Provider requires and/or uses to process Your orders; (b) Your order information,
including, without limitation, order amount, payment account numbers, security codes, expiration date, payment type, device used; (c) information You collect from your customers, including, without limitation, contact information (e.g., name, address, phone number, email address); (d) online performance, reputation, or feedback data associated with Your account on
a third party site or service such as Facebook, Twitter, etc.; (e) data You obtain from third party data sources such as e-mail marketing companies; and, (f) user ID names and passwords and other login credentials for sites that we may access on Your behalf.
4.2 Consents and Authorizations. For any User Data You collect from Your customers or third party sources and provide to Womply, You represent and warrant that You will obtain all legally necessary consents from such customers prior to sending the User Data to Womply and further that all such User Data will be true and accurate, to the best of your knowledge.
Furthermore, You agree to notify Womply immediately if consent is withdrawn or invalid with respect to a customer whose information You’ve already provided to Womply. To the extent User Data will be provided to Womply by Your Card Services Provider, You agree to provide all necessary consents and authorizations to Your Card Services Provider and perform all acts necessary to enable Your Card Services Provider to transmit such User Data to Womply.
4.3 Access to Third Party Sites. If a Service You use involves Womply accessing, retrieving information from, or posting information to Your account at a third party site, e.g., Facebook, Twitter, Google, etc., on Your behalf, You hereby authorize Womply to use Your login credentials to access, retrieve information from, and post information to such sites on your behalf. You agree to update Womply with any changes to Your login credentials or access to such sites. For the purposes of this Section 4.3, You grant Womply a limited power of attorney, and appoint Womply as Your attorney-in- fact and agent, to access third party sites, to retrieve and use Your information, and to post content on such sites, with the full power and authority to do and perform each thing necessary in connection with engaging and enabling the Services.
YOU ACKNOWLEDGE AND AGREE THAT WHEN WOMPLY IS ACCESSING AND RETRIEVING ACCOUNT INFORMATION FROM THIRD PARTY SITES, WOMPLY IS ACTING AS YOUR AGENT, AND NOT AS THE AGENT OF OR ON BEHALF OF THE THIRD PARTY THAT OPERATES THE THIRD PARTY SITE. You understand and agree that the Services are not sponsored or endorsed by any third parties accessible through the Services.
4.4 Duration of Authorization. The consents and authorizations in this Section 4 shall remain in full force and effect unless and until You notify Womply in writing (per Section 15.2 below) to stop the use of User Data in connection with the Services, and Womply has had a commercially reasonable timeframe to act upon Your request.
4.5 DISCLAIMER. YOU ACKNOWLEDGE AND AGREE THAT WOMPLY WILL NOT BE LIABLE TO YOU OR YOUR CUSTOMERS, UNDER ANY CIRCUMSTANCES, FOR (I) THE INAPPROPRIATE OR UNAUTHORIZED PROVISION OF USER DATA BY YOUR CARD SERVICES PROVIDER OR THIRD PARTY SITE TO WOMPLY; OR (II) ANY ERRORS BY OR ARISING FROM THE ACTS OR OMISSIONS OF YOUR CARD SERVICES PROVIDER OR OTHER THIRD PARTY IN CONNECTION WITH ITS USE OF THE USER DATA.
4.6 Womply’s Use of User Data. To the extent that Womply’s access to User Data is granted by You to Womply, You hereby grant Womply an irrevocable, non-exclusive, worldwide, royalty-free right and license to collect, use, store, copy, display, analyze, and perform any other actions with respect to such User Data as reasonably necessary to perform the Services hereunder and as otherwise permitted under applicable laws (“Use”). Such Use is subject to
a. using User Data to contact Your customers on Your behalf to effect the intended purposes of the applicable Service, e.g., conducting satisfaction surveys, offering Your promotions;
b. sending User Data to third parties with whom we’ve entered into contracts to perform certain functions of a Service including for purposes of analysis and marketing;
c. using User Data to configure the Services to be compatible with third party sites You authorized Womply to access on Your behalf;
d. using User Data to supplement comparable data we receive from third parties to enable certain features of our Services that will be made available to our customers generally, but without disclosing personally identifying information contained in User Data You provide to Womply to the extent such personally identifying information is unique to You;
e. using User Data to generate invoices to you and collecting payment thereon;
f. using User Data to provide support services to You and/or Your Card Services Provider; and,
g. analyzing User Data to enhance the Services or develop future products.
4.7 Data Supplementation. Womply may combine User Data with data and information we obtain or derive from third parties (“Third Party Data”). To the extent that we provide you access to Third Party Data, You agree that, as between You and Womply, Womply is the sole and exclusive owner of Third Party Data. You further agree that You will not use Third Party Data except as Third Party Data is incorporated into a Service, in which event your use of the
Third Party Data shall be limited to intended features and functions of the applicable Service.
5.1. Seller Content. In addition to User Data, we may enable You to upload or provide files, documents, photos, logos, products, loyalty programs, promotions, advertisements and other materials or information to Womply (“Content”). You agree that You will not upload or provide any Content unless You have created it Yourself or You have permission from the Content
owner to do so. You represent that You have all necessary rights and authorizations to submit Content to Womply or through the Services, without any obligation by Womply to pay any fees or be subject to any restrictions or limitations. You grant us, our affiliates and successors a worldwide, non-exclusive, royalty-free, fully-paid, transferable, and sub-licensable right to use,
reproduce, modify, adapt, publish, prepare derivative works of, distribute, publicly perform, and publicly display Your Content throughout the world in any media in order to provide and promote the Services and Womply’s business. You retain all rights in Content, subject to the rights granted to Womply in this Agreement. You may modify or remove Content via Your
Womply Account or by terminating Your subscription, but Content may persist in historical, archived or cached copies and versions thereof available on or through the Services.
5.2. Prohibited Content. You agree not to upload or provide Content or otherwise post, transmit, distribute, to Womply or disseminate through the Services any material that: (a) is false, misleading, unlawful, obscene, indecent, lewd, pornographic, defamatory, libelous, threatening, harassing, hateful, abusive, or inflammatory; (b) encourages conduct that would
be considered a criminal offense or gives rise to civil liability; (c) breaches any duty toward or rights of any person or entity, including rights of publicity, privacy or trademark; (d) contains corrupted data or any other harmful, disruptive, or destructive files; (e) advertises products or services competitive with Womply’s or its customers’ products and services, as determined by
Womply in its sole discretion; or, (f) in Womply’s sole judgment, is objectionable, restricts or inhibits any person or entity from using or enjoying any portion of the Services, or that may expose Womply, its affiliates, customers, or Buyers to harm or liability of any nature.
5.3. Content Disclaimer. Although Womply has no obligation to screen, edit, or monitor Content, Womply reserves the right, and has absolute discretion, to remove, screen, edit, or disable any Content at any time and for any reason without notice. You understand that by using the Services, You may be exposed to Content that is offensive, indecent, or objectionable. We take no responsibility and assume no liability for any Content, including any loss or damage to any of Your Content.
6. Restrictions, Responsibilities Prohibited Activities
6.1. Restrictions. You are responsible for any and all acts and omissions of Your employees and contractors, or any user who logs in to the Service using Your User ID and password. You will not, and will not permit any third party to: (a) reverse engineer (except to the extent applicable law expressly prohibits or limits restrictions on reverse engineering, but only to the
extent required by such law (such as for interoperability purposes) and only to the extent that Womply does not make the requisite interoperability information available to You through another means), decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation, reports, or data related to or generated by the Services; (b) modify, translate,
or create derivative works based on the Services; use the Services for timesharing or service bureau purposes or for any purpose other than its own internal business purposes; (c) use the Services other than in accordance with this Agreement and in compliance with all applicable laws and regulations or in any manner that infringes, misappropriates, or violates the intellectual property rights or proprietary rights of any third party; (d) use the Services in any manner that is harmful, fraudulent, deceptive, threatening, abusive, obscene, libelous, or otherwise objectionable; (e) use the Services in any manner that could disable, overburden, damage, or impair the Services (or the Womply site), or interfere with any other use or availability of the Services (or the Womply site); (f) use any robot, spider, program, script, or other automatic device, process, or means to access the Services (or the Womply site) for any
purpose, including to monitor or copy any of the material provided through the Services (or on the Womply site); (g) use any manual process to monitor or copy any of the material provided through the Services (or on the Womply site), or to engage in any other unauthorized purpose without Womply’s express, prior written consent; (h) otherwise use any device, software, or
routine that interferes with the proper working of the Services (or the Womply site); or (i) otherwise attempt to interfere with the proper working of the Service (or the Womply site).
6.3. Prohibited Activities. You further confirm that You will refrain from business activities or transactions using the Services in any manner that is prohibited, including without limitation, that:
a. enables illegal activity, or that promotes or encourages illegal activity;
b. promotes, encourages or engages in pornography, child pornography or the exploitation of children;
c. encourages or engages in terrorism, violence against people, animals, or property;
d. promotes, encourages or engages in any spam or other unsolicited bulk email, or computer or network hacking or cracking;
e. violates the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 or similar legislation, or promotes, encourages or engages in the sale or distribution of prescription medication without a valid prescription;
f. infringes on the intellectual property rights of another user or any other person or entity;
g. violates the privacy or publicity rights of any other person or entity, or breaches any duty of confidentiality that You owe to another User or any other person or entity;
h. interferes with the operation of the Services or the Womply site;
i. contains or installs any viruses, worms, bugs, Trojan horses or other code, files or programs designed to, or capable of, disrupting, damaging or limiting the functionality of any software or hardware; or
j. contains false or deceptive language, or unsubstantiated or comparative claims, regarding Womply or the Services
k. promotes or enables internet/mail order/telephone order cigarette, tobacco or vaporizer sales, drug paraphernalia, occult materials, hate or harmful products, escort services, engagement involving debt collection; or any activity encouraging or allowing the transaction of business with stolen goods or services.
7. Apple App Store
This Agreement applies to Your use of all the Services, including the iPhone, iPod Touch, and iPad applications available via the Apple, Inc. (“Apple”) App Store (the “Application”), but the following additional terms also apply to the Application:
a. Both You and Womply acknowledge that the Agreement is concluded between You and Womply only, and not with Apple, and that Apple is not responsible for the Application or the Content;
b. The Application is licensed to You on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for Your private, personal, non-commercial use, subject to all the terms and conditions of these Agreement as they are applicable to the Services;
c. You will only use the Application in connection with an Apple device that You own or control;
d. You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
e. In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, You may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to You will be to refund to You the purchase price, if any, of the Application;
f. You acknowledge and agree that Womply, and not Apple, is responsible for addressing any claims You or any third party may have in relation to the Application;
g. You acknowledge and agree that, in the event of any third party claim that the Application or Your possession and use of the Application infringes that third party’s intellectual property rights, Womply, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
h. You represent and warrant that You are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that You are not listed on any U.S. Government list of prohibited or restricted parties; and
i. Both You and Womply acknowledge and agree that, in Your use of the Application, You will comply with any applicable third party terms of agreement which may affect or be affected by such use.
j. Both You and Womply acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement, and that upon Your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against You as the third party beneficiary hereof.
8. Intellectual Property Rights
Except as expressly set forth herein, Womply (and its licensors, where applicable) will retain all intellectual property rights relating to the Services (and any technology powering the Services), as well as any and all suggestions, ideas, enhancement requests, feedback, recommendations
or other information provided by You or any other party relating to the Services, which You hereby assign to Womply. Womply reserves all rights not expressly granted to You hereunder.
9.1 Each Party (the “Receiving Party”) hereby agrees (i) to hold the other party’s (the “Disclosing Party”) Confidential Information in strict confidence and to take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions the Receiving Party employs with respect to its own confidential materials), (ii) not to divulge any such Confidential Information or any information derived therefrom to any third
person; (iii) not to make any use whatsoever at any time of such Confidential Information except as contemplated hereunder, (iv) not to remove or export from the United States or re-export any such Confidential Information or any direct product thereof, except in compliance with, and with all licenses and approvals required under, applicable U.S. and foreign export laws
and regulations, (v) not to copy or reverse engineer any such Confidential Information, and (vi) that any employee, subcontractor, or agent given access to any such Confidential Information must have a legitimate “need to know” and shall be bound in writing to comply with the Receiving Party’s confidentiality obligations, whether generally or specific to this Agreement.
9.2 Except as otherwise provided in this Agreement, within thirty (30) calendar days of termination of this Agreement, the Receiving Party shall, destroy all materials that constitute Confidential Information and/or Intellectual Property of the Disclosing Party and upon request provide to the Disclosing Party written certification signed by an authorized officer of the Receiving Party that all such information was so destroyed. Notwithstanding the foregoing, each party may retain Confidential Information that is (i) stored on archival or back-up files or (ii) required for compliance with applicable law, Payment Network Rules or its obligations pursuant to this Agreement, provided that such party continues to maintain confidentiality of such Confidential Information pursuant to the terms of this Agreement.
9.3 Notwithstanding any provision in this Agreement to the contrary, each party may disclose Confidential Information of the other party to the extent it is required to be disclosed pursuant to a valid order or requirement of a governmental agency or court of competent jurisdiction.
11. Term and Termination
11.1. Term. This Agreement shall commence upon Your acceptance hereof, and shall remain in full force and effect for so long as You continue to use the Service in strict accordance with the terms, conditions, and limitations of this Agreement. Except in the case where You and Womply have entered into a pre-paid annual billing arrangement, You may terminate this Agreement for any reason or for no reason with fifteen days (15) days written notice to
Womply. Womply may terminate this Agreement at any time for any reason or no reason by sending you E-mail Notification. Womply may suspend Your access to the Services at any time and without notice, if Womply believes in its sole discretion that You have breached any of the terms of this Agreement. Upon termination of this Agreement, Your right to use the Service will
11.2. Effect of Termination. Upon the termination of this Agreement for any reason, You will immediately cease using, and Womply will immediately cease providing the Services hereunder.
12. Representations and Warranties; Disclaimers
12.1 Mutual Warranties. Each party represents and warrants to the other that (a) it has all necessary right, power and ability to execute this Agreement and to perform its obligations therein; (b) no authorization or approval from any third party is required in connection with such party's execution, delivery or performance of this Agreement; (c) this Agreement constitutes a legal, valid and binding obligation, enforceable against it in accordance with its
terms; and, (d) the party's obligations under this Agreement do not violate any law, policy or regulation or breach any other agreement to which such party is bound.
12.2. Your Warranties. You represent and warrant that at all times during the term of this Agreement and any renewal thereof: (i) all representations and statements made by You in this Agreement, or in any other document relating hereto by You or on Your behalf, are true, accurate and complete in all material respects; (ii) You are engaged in a lawful business and have all necessary rights and authorizations to sell and distribute Your products and/or services; (iii) You will comply, at Your own expense, with all laws, policies, guidelines, regulations, ordinances or rules applicable to You, this Agreement, or User Data, including, without limitation: (a) the Payment Network Rules; (b) the Payment Card Industry Data Security Standard (PCI DSS); (c) any regulatory body or agency having jurisdiction over the subject
matter hereof; and (d) the Services Documentation.
A. THE SERVICES AND ANYTHING PROVIDED BY WOMPLY OR ITS LICENSORS OR SUPPLIERS, IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED "AS-IS," WITHOUT ANY WARRANTIES OF ANY KIND. WOMPLY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF USER ABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. WOMPLY’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, PERSONAL COMPUTERS, AND ELECTRONIC COMMUNICATIONS. WOMPLY IS NOT RESPONSIBLE FOR ANY DELAYS,
DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. IN ADDITION, WOMPLY RESERVES THE RIGHT TO UPGRADE, CHANGE, ADD, OR MODIFY THE SERVICES WITH OR WITHOUT NOTICE, AND WITHOUT PENALTY. IN ADDITION, WOMPLY MAY AT ANY TIME, (A) INTERRUPT THE OPERATION OF THE SERVICES (OR ANY PORTION THEREOF) AS NECESSARY TO PERFORM ROUTINE OR NON-ROUTINE MAINTENANCE, ERROR CORRECTION, OR SIMILAR CHANGES, AND/OR (B) REVOKE OR SUSPEND USER’S ACCOUNT IN THE EVENT OF ANY SUSPECTED OR ACTUAL VIOLATION OF THIS AGREEMENT BY USER.
B. WOMPLY IS NOT INVOLVED IN ANY TRANSACTIONS BETWEEN YOU AND YOUR CARD SERVICES PROVIDERS, PROCESSOR OR ANY OTHER THIRD PARTY. AS A RESULT, WOMPLY HAS NO CONTROL OVER THE TRUTH OR ACCURACY OF ANY STATEMENTS MADE BY ANY SUCH THIRD PARTY TO YOU, OR THE TIMELY PERFORMANCE OF SUCH THIRD PARTY’S OBLIGATIONS TO YOU. ACCORDINGLY, IN THE EVENT THAT YOU HAVE A DISPUTE WITH ONE OR MORE THIRD PARTIES, YOU AGREE TO RELEASE, INDEMNIFY, AND HOLD WOMPLY (AND WOMPLY’S SUPPLIERS AND LICENSORS) HARMLESS FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES OF EVERY KIND AND NATURE, KNOWN
AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
C. YOU ACKNOWLEDGE THAT THE INTERNET CONSISTS OF MULTIPLE INTERCONNECTED NETWORKS THAT ARE INDEPENDENTLY OWNED AND THAT ARE NOT SUBJECT TO WOMPLY’S CONTROL AND THAT WOMPLY DOES NOT WARRANT THE SERVICES AGAINST FAILURE, MALFUNCTION, OR CESSATION OF INTERNET SERVICES OR CONNECTIVITY BY INTERNET SERVICE PROVIDERS OR ANY OF THE NETWORKS THAT MAKE UP THE INTERNET THAT MAY MAKE THE SERVICES TEMPORARILY OR PERMANENTLY UNAVAILABLE. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF WARRANTIES
OR EXCLUSION OF DAMAGES. SOLELY TO THE EXTENT APPLICABLE, THE WARRANTY DISCLAIMERS SET FORTH IN THIS SECTION AND THE LIMITATIONS OF LIABILITY IN SECTION 13 BELOW MAY NOT APPLY.
13. LIMITATION OF LIABILITY; INDEMNIFICATION
13.1 LIMITATION OF LIABILITY.
A. IN NO EVENT WILL WOMPLY (OR ITS LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS, USE, OR DATA) ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OR CORRUPTION OF DATA, ERROR OR OMISSION IN THE SERVICES, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF WOMPLY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
B. THE TOTAL LIABILITY OF WOMPLY (AND ITS LICENSORS AND SUPPLIERS) ARISING FROM OR RELATING TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE AMOUNTS PAID BY YOU TO WOMPLY IN THE THREE (3) MONTH PERIOD PRECEDING THE APPLICABLE CLAIM.
13.2. Indemnification. You shall defend, indemnify, and hold harmless Womply and its affiliates, parents, and/or subsidiaries, and any of their officers, directors, agents and employees, from and against any and all claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable
attorneys'; fees and other litigation expenses) incurred by Womply, arising out of or relating to
(a) any breach or alleged breach by You of any of Your representations, warranties, or obligations set forth in this Agreement;
(b) any damage or loss caused by negligence, fraud, dishonesty or willful misconduct by You or any of Your employees, agents or customers;
(c) the reliability, accuracy, or legitimacy of User Data submitted by You to Womply;
(d) any alleged infringement of a patent, copyright, trademark or other intellectual property right resulting from Your actions;
(f) claims by your customers, including, without limitation, claims relating to the disclosure of User Data; or
(g) any alleged or actual violation by You of any applicable laws, regulations, the Payment Network Rules or any regulatory body or agency having jurisdiction over the subject matter hereof.
14.1 “Card Services Provider” shall mean an authorized member of Visa U.S.A. Inc. or MasterCard Worldwide, or an authorized agent of such member, that underwrites and enables Your ability to accept credit, debit or charge cards for the sale of Your goods and/or services.
14.2 “Fees Payable in Arrears” shall mean fees that are paid at the end of the calendar month in which the Services were used.
14.3 “Payment Network Rules” means the operating rules, bylaws, schedules, supplements and addenda, manuals, instructions, releases, specifications and other requirements, as may be amended from time to time, of Visa, MasterCard, American Express, Discover Financial Services, any affiliates thereof.
14.4 “Prepaid Fees” shall mean fees that are paid in advance for Services to be used during the calendar month.
14.5 “Services Documentation” means collectively, the operating instructions, user manuals, and help files, in written or electronic form, made available to You and that are intended for use in connection with the Services.
15. General Provisions
15.1 Non-exclusivity. Each party acknowledges and agrees that the rights granted to the other party in this Agreement are non-exclusive, and that, without limiting the generality of the foregoing, nothing in this Agreement shall be deemed or construed to prohibit either party from participating in similar business arrangements as those described herein.
15.2 Notices. Any notice to be given under this Agreement must be given in writing and delivered either by hand, first class prepaid post or other recognized delivery service, by facsimile or by recognized email addresses to each party’s responsible contact person. Such written notice will be deemed given upon personal delivery, upon confirmation of receipt if sent by fax, or three (3) days after the date of mailing if sent by certified or registered mail,
postage prepaid. Electronic mail notices shall be deemed given the next business day following the date delivered.
15.3 Assignment or Transfer. You may not assign or transfer any of its rights or obligations under this Agreement to any third party (including by operation of law or merger) without Womply’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be null and void.
15.4 Waivers. Any waiver of the provisions of this Agreement must be in writing to be effective. If any part of this Agreement is found by a court of competent jurisdiction to be invalid, unlawful or unenforceable, then such part shall be severed from the remainder of the Agreement, which shall continue to be valid and enforceable to the fullest extent permitted by
Applicable Law. No failure or delay on the part of any party in exercising any right or remedy provided in this Agreement shall operate as a waiver thereof; nor shall any single or partial exercise of or failure to exercise any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy provided herein, at Law or in equity. Except as expressly provided herein, no remedy specified in this Agreement is intended
to be exclusive of any other remedy, and each and every remedy shall be cumulative and in addition to every other right or remedy provided herein or available at law or in equity.
15.5 Telephone Recording. You acknowledge, agree and consent to Womply monitoring and recording any customer service telephone conversations with You at any time, without additional further notice to the parties to such conversations.
15.6 Entire Agreement. This Agreement (including any and all exhibits attached hereto, which by this reference, are incorporated herein) constitutes the entire agreement between the Parties regarding the subject matter hereof, and it supersedes any and all prior agreements and understandings between the Parties, written or oral, not incorporated herein with respect to
the subject matter of this Agreement. Except as otherwise set forth herein, this Agreement may not be changed unless mutually agreed upon in a writing signed by authorized representatives of both Parties. As used herein, the term “including” means “including without limitation”.
15.7 Relationship of the Parties. The Parties are independent contractors. Nothing in this Agreement shall be construed to create a joint venture, partnership or an agency relationship between the Parties. You acknowledge and agree that Womply’s service providers and partners in providing the Services are express third party beneficiaries of this Agreement, with the right
to enforce Womply’s rights and remedies directly against You.
15.8 Severability. If any of the provisions of these Terms of Service are deemed invalid or unenforceable under an applicable law, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Agreement but rather the Agreement will be construed as if not containing the particular invalid or unenforceable provision or provisions.
15.9 Force Majeure. Neither party will be liable for any losses arising out of the delay or interruption of its performance of obligations under the Agreement due to any acts of God, acts of civil or military authorities, civil disturbances, wars, strikes or other labor disputes, fires, transportation contingencies, interruptions in telecommunications, utility, Internet services or
network provider services, acts or omissions of a third party, infiltration or disruption of the Services by a third party by any means, including without limitation, DDoS attacks, software viruses, Trojan horses, worms, time bombs or any other software program or technology designed to disrupt or delay the Services, or other catastrophes or any other occurrences which are beyond such parties'; reasonable control (each a “Force Majeure Event”), provided that the party delayed will provide the other party notice of any such delay or interruption as soon as reasonably practicable, will use commercially reasonable efforts to minimize any delays or interruptions resulting from the Force Majeure Event and in no event will any failure to pay any monetary sum due under this Agreement be excused for any Force Majeure Event.
15.10 Survival. The provisions of this Agreement relating to any fees or other amounts owed, payment of interest on unpaid fees, confidentiality, warranties, limitation of liability, indemnification, governing law, severability, headings and this paragraph shall survive termination or expiration of this Agreement.
15.11 Governing Law, Venue. This Agreement, including any and all exhibits attached hereto (and by this reference, incorporated herein), shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods and Uniform Computer Information Transactions Act shall not apply to this Agreement. The federal and state courts sitting in San Francisco County, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or relating to the subject matter of this Agreement, and each party agrees to submit to the jurisdiction of such courts for such purposes.
15.12 Arbitration. Any dispute arising out of or relating to this Agreement, including the breach, termination or validity thereof, must be brought to, and shall be finally resolved by, arbitration in accordance with the International Institute for Conflict Prevention and Resolution (“CPR”) Rules for Administered Arbitration of International Disputes by three arbitrators, of whom each party shall designate one, with the third arbitrator to be appointed by CPR.
Judgment upon the award rendered by the arbitrator(s) may be entered by any court having jurisdiction thereof as set forth in Section 15.7. The seat of the arbitration shall be San Francisco, California. The language of the arbitration shall be English.
15.13 Open Source. Womply's Products may include and/or its Services may rely on use of certain independent code that is licensed under open source licenses ("Open Source Code") and such Open Source Code is licensed to You in accordance with the applicable open source licenses. To the extent that any of the terms and conditions in these Terms of Service conflict with any such open source licenses, the conflicting terms and conditions will not apply to the corresponding Open Source Code.
15.14 Contacting Us. If you have any questions about this Agreement, the Services, or Womply, please contact us at (855) 929-9111. You may also email us at email@example.com.