Womply Service Agreement
PLEASE READ THE AGREEMENT CAREFULLY BEFORE USING ANY OF THE WOMPLY SERVICES.
THIS SERVICE AGREEMENT is a legal agreement (the “AGREEMENT”). Womply’s website and the Services (as defined) are available only to Users who can form legally binding contracts under applicable law. By using this Site or 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 found under the laws of the United States or other applicable jurisdiction.
The Agreement is between you, meaning Individual Users and Merchant/Vendors, (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 Womply’s applications, services and websites as well as that which is described at HTTPS://WOMPLY.COM/ (Together, the “Services”).
If you are entering into this Agreement on behalf of a corporate entity, you represent and warrant that you have the legal authority to bind such corporate 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 corporate entity. If, after your electronic acceptance of this Agreement, Womply finds that you do not have the legal authority to bind such corporate entity, the Party having agreed to these terms 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 your 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. You further agree to be bound by the terms of this Agreement for transactions entered into by you, anyone acting as an agent for You and anyone who uses your account or the Services, whether or not authorized by you.
BY CLICKING THE “ACCEPT” BUTTON OR BY USING THE SERVICES IN ANY MANNER, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY AND ARE A PARTY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. USE OF THE SERVICE IS EXPRESSLY CONDITIONED UPON USER’S ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS. IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL THE TERMS AND CONDITIONS OF THE AGREEMENT, NAVIGATE AWAY FROM THIS PAGE, YOU WILL NOT HAVE THE RIGHT TO USE THE SERVICE. BY CLICKING THE “ACCEPT” BUTTON, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND YOURSELF AND ACKNOWLEDGE THAT YOU ARE ACTING AS AN AUTHORIZED PARTY ON BEHALF OF ANY MERCHANT OR COMPANY.
NOTE THAT BELOW IS A PROVISION REGARDING YOUR AGREEMENT TO ARBITRATE ANY DISPUTE AND THE WAIVER OF YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION.
- Registration. You must register with Womply to use the Services through the online registration and account maintenance process (“Registration””). During registration you will need to include your name and information when prompted including contact information. You must provide accurate and complete information in response to Our questions. You must also keep the information that you provide up-to-date. You must use Your or your business’ true and accurate name in registering for Womply Services. Womply reserves the right to seek additional information from you at any time, including without limitation as needed to provide the Services. Moreover, You will 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 use of Womply Services if You provide inaccurate, untrue, or incomplete information, or fail to comply with the account registration requirements.
- Rights and Licenses. Subject to the terms and conditions of this Agreement, Womply grants You a limited, non-exclusive, non-sublicenseable, royalty-free, non-transferrable right to access and use the Services. The Services are subject to modification, restriction, or suspension at Womply’s sole discretion for any purpose deemed appropriate by Womply. Furthermore, Womply reserves the right, in its sole discretion, to modify this Agreement at any time by sending you a notice. You are responsible for reviewing and becoming familiar with any modifications reflected in such notice. If Womply makes a material change to this Agreement in accordance with the foregoing, you may elect to suspend your use of the Services, which is your sole and exclusive remedy for early termination. In order to terminate this Agreement, you must provide written notice to Womply, which must be received within ten (10) business days following the date of Womply’s notice to You of a material change. Without limiting the refund provision in Section 3.6, there will be no refund of amounts paid for Subscription Period (defined below) in which You paid for the Service, whether or not You elect to terminate before the Subscription Period’s completion. Use of the Services following a notice by Womply of a material change, or that Services have been updated, modified or restricted constitutes your acceptance of the terms and conditions of this Agreement as modified.
- General Payment Terms. To the extent you use a Service that is made available for a fee, you will be required to select a payment plan and provide accurate information regarding your credit card, ACH or other payment instrument. You will promptly update your account information with any changes in your payment information. You agree to pay Womply in accordance with the terms set forth on Womply.com and related pages and this Agreement, and you authorize Womply, or its third-party payment processors, to bill your payment instrument in advance on a periodic basis in accordance with such terms (the “Billing Period”). Any free trial that provides access to a Service that otherwise is available for a fee must be used within the specified time of the trial (a “Trial”). You must stop using such paid Service before the end of the Trial in order to avoid being charged for that paid Service.
- 3.1. Third Party Billing.If you do not select a different payment instrument, you authorize Womply to bill you for Services through your payment processor, bank, or other third party via ACH or another method. You may cancel your ACH draft by calling 855-929-9111.
- 3.2. If you dispute any charges you must let Womply know within thirty (30) days after the date that Womply invoices you. Without limiting the limited refund right set forth in Section 3.6, all amounts paid are non-refundable and we reserve the right to change our prices in the future. If we increase our prices for your Service plan, we will provide notice of the change on the Site and in email to you at least 30 days before the change is to take effect. Your continued use of the Service after the price change goes into effect constitutes your agreement to pay the changed amount.
- 3.3. Womply may choose to bill you directly (online) or through an invoice (the “Preferred Billing Method”). Depending on your Preferred Billing Method, full payment must be made by an online method on the stated due date, or in the case of an invoice, no later than the date specified in the invoice. Notwithstanding the foregoing, at Womply’s sole discretion, Womply may elect to bill you via any means that is available to Womply in the event that Womply encounters any difficulty in billing you via the Preferred Billing Method or otherwise has difficulty in receiving timely payment from you. If Womply is unable to collect fees when due from you, Womply may suspend your access to the Services or terminate this Agreement.
- 3.4. Past due fees 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. 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 $25 per attempt.
- 3.5. Womply is not responsible for any payment processing errors or fees or other Services-related issues, including those issues that may arise from inaccurate account information or errors by independent third party billing services.
- 3.6. If you have not received a free trial (or any other free access) to the Service, Womply will refund You the pre-paid subscription fees for Your initial purchase of any paid subscription to the Services if, and only if, Womply receives a written request for such a refund within thirty (30) days of the commencement of, the earlier of, such subscription via an email to: email@example.com. If You request such a refund, Your paid subscription to the Services may cease immediately without further notice including, without limitation, access to portions or features of the Services that require a paid subscription and any User Data or Content contained in the Services may be irretrievably deleted or removed without further notice. Please note that the foregoing refund does not include any separate fees or taxes that You may have been included in Your purchase. For clarity, if you have previously received a free trial to the Services, You are not entitled to (and Womply will not provide) any such refund.
This authorization shall remain in full force and effect until you notify Womply in writing (per Section 15.2 below) to stop the use of User Data in connection with the Services. Womply shall honor User’s notice to stop such transmission of User Data in a commercially reasonable timeframe after receipt of such notice.
- Seller Content. In addition to User Data, and business listings, you may be able to upload or provide files, documents, photos, logos, products, loyalty programs, promotions, advertisements and other materials or information (“Content”).
- 5.1. 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 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. You agree not to upload or provide Content or otherwise post, transmit, distribute, 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 partners’ 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 which may expose Womply, its affiliates, its customers, or Buyers to harm or liability of any nature.
- 5.3. 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.
- Rights, Additional Licenses, Restrictions, Responsibilities Prohibited Activities.
- 6.2. 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 (including but not limited to any European privacy laws) 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 of the Services (or the Womply site), including but not limited to, any user’s ability to engage in real-time activities through 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. You further confirm that you will refrain from certain business activities or transactions using Womply Services in any manner that is prohibited, including without limitation, that:
- enables illegal activity, or that promotes or encourages illegal activity;
- promotes, encourages or engages in pornography, child pornography or the exploitation of children;
- encourages or engages in terrorism, violence against people, animals, or property;
- promotes, encourages or engages in any spam or other unsolicited bulk email, or computer or network hacking or cracking;
- 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;
- infringes on the intellectual property rights of another User or any other person or entity;
- violates the privacy or publicity rights of another User or any other person or entity, or breaches any duty of confidentiality that you owe to another User or any other person or entity;
- interferes with the operation of this Site or the Services found at this Site;
- 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
- contains false or deceptive language, or unsubstantiated or comparative claims, regarding Womply or Womply’s Services
- 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.
- 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:
- 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;
- 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;
- You will only use the Application in connection with an Apple device that you own or control;
- You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
- 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;
- 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;
- 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;
- 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
- 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.
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.
- 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), any and all 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.
- Confidentiality. You understands that Womply or its business partners has disclosed or may disclose information relating to Womply’s or Womply’s business partner’s technology or business (hereinafter referred to as “Proprietary Information”).
- 9.1. You agree: (i) to give access to such Proprietary Information solely to those employees, contractors and Womply partners with a need to have access thereto for purposes of this Agreement and who are bound by confidentiality obligations consistent with the terms of this Section, (ii) to take materially the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that You take with Your own proprietary information, but in no event will You apply less than reasonable precautions to protect such Proprietary Information, and (iii) not to use the Proprietary Information for any purpose except as necessary for the exercise of Your rights or to fulfill Your obligations under this Agreement. Womply agrees that the foregoing will not apply with respect to any information that You can document: (a) is or becomes generally available to the public through no fault of You, or (b) was in Your possession or known by You without restriction prior to receipt from Womply, or (c) was rightfully disclosed to You without restriction by a third party, or (d) was independently developed by You. Nothing in this Agreement will prevent You from disclosing Proprietary Information to the extent expressly required by a judicial or governmental order, provided that You give Womply reasonable prior notice of such disclosure to contest such order. For clarity, the Womply pricing and payment terms applicable to You and any reports prepared by Womply related to the Services (even if such reports contain Your data as allowed by the Agreement) are Proprietary Information.
- 9.2. You agree that Womply may use or disclose certain User data/information to the extent that Womply believes such use or disclosure may be necessary to: (i) conform to applicable laws or regulations, or with legal processes; (ii) bring legal action to defend and protect Womply’s rights or property (or that of Womply’s other users or partners or other third parties); (iii) act under exigent circumstances to protect the personal safety of Womply’s Users, partners, customers, employees, agents, or the public; (iv) administer its network to maintain performance for its customers/clients; (v) provide the Services.
- 9.3. You agree that Womply and its employees and contractors may store, use and process: (i) Your (and your employees’ and contractors’) contact information in connection with Womply’s provisioning or performance of the Services, including your account administration, maintenance and support activities, billing and invoicing, Womply’s internal customer and market analysis and reporting, and to communicate to you regarding products and services; and (ii) Your billing, User Data and/or User credential data in connection with Womply’s provisioning or performing of the Services, including Your account administration, third party account administration (ie: Facebook, Google, etc.), billing, invoicing and payment processing. It is Your responsibility to obtain your employees’ and contractors’ consent for Womply to use their contact data in accordance with this section.
- 9.4. In the event that You had disclosed any confidential information to Womply or that a payment processor had provided such information on behalf of You to Womply prior to this Agreement taking effect, such disclosure will be governed by the terms of this Agreement, and not any prior confidentiality agreement or terms.
- Term and Termination.
- 11.1. This Agreement shall commence upon your acceptance hereof, and shall remain in full force and effect until this Agreement is terminated in accordance herewith. Unless otherwise agreed to by you and Womply, the term of this Agreement will be one year (the “Subscription Period”). For Merchants, an agreement to a different Subscription Period (e.g. a multi-year subscription) may be memorialized in the online order form on the Service. All Subscription Periods shall automatically renew for periods equal to the immediately preceding Subscription Period (on the same payment schedule) unless you provide notice to Womply of your intent not to renew no later than fifteen days prior to the end of your then-current Subscription Period (the date of such renewal, the “Renewal Date”). For clarity, without limiting the limited refund set forth in Section 3.6, Merchants are obligated to pay all fees for the entire Subscription Period regardless of the payment period agreed upon by Merchant and Womply. Womply may but is not obligated to provide you with notice of an approaching Renewal Date. Womply may terminate this Agreement at any time for any reason or no reason. 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 immediately cease.
- 11.2. Upon the termination of this Agreement for any reason, you will immediately cease using, and Womply will immediately cease providing the Services hereunder. The following provisions, or relevant portions thereof, shall survive termination of this Agreement: Sections 3, 4, 5.3, 6.1, 6.2, 7, 8, 9, 10, 11.2, 12-15, and any payment obligations incurred prior to termination.
- WARRANTY; DISCLAIMER. Each Party warrants and represents to the other Party that it will perform its obligations hereunder with reasonable skill and care in compliance with all applicable laws and regulations (“Applicable Laws”).
- 12.1. You warrant and represent that the products and services that are made available to your customers shall comply with all Applicable Laws in any jurisdiction in or to which you are making products and services available, and that you have all necessary licenses and permits in place to engage in the advertising and provision of its products and services.
- 12.2. You represent and warrant that you are not currently subject to an order, litigation, or investigation by any federal, state, or local or international regulatory or law enforcement organization, and agree to notify Womply immediately in writing of any such order, litigation, or investigation arising out of or relating to your activities in connection with this Agreement.
- 12.3. You represent and warrant that any and all information submitted by or on behalf of you in connection with the Services will be complete and accurate in all respects, and that Womply shall have the right to use such information for the purposes described in or contemplated by this Agreement.
- 12.4 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.
- 12.5 WOMPLY IS NOT INVOLVED IN ANY TRANSACTIONS BETWEEN YOU AND ANY PROCESSOR OR ANY USER SUPPLIER OR 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.
- 12.6 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.
- LIMITATION OF LIABILITY. 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. 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 TWELVE (12) MONTH PERIOD PRECEDING THE APPLICABLE CLAIM.
- INDEMNIFICATION. You shall release, indemnify and hold harmless Womply, its affiliates, and its and their employees, contractors, directors, suppliers and representatives, from and against any liabilities, losses, damages, claims, costs, and expenses, including reasonable attorneys’ fees, incurred by any of them, arising from or relating to your use of the Services, any breach by you or your agents of this Agreement, or any claim that your actions violate any applicable law or third party right.
- 15.1 Womply shall not be responsible for any delays or failures in performance due to circumstances beyond its reasonable control.
- 15.2 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.
- 15.3 You may not assign or transfer any of its rights or obligations under this Agreement to any third party (including by operation of law) without Womply’s prior written consent. Any attempted assignment in violation of the foregoing will be null and void.
- 15.4 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.
- 15.5 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.
- 15.6 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 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 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 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.
- 15.10 Any dispute arising from or relating to the subject matter of these Terms of Service shall be finally settled in San Francisco County, California, in English, in accordance with the Streamlined Arbitration Rules and Procedures of JAMS (formerly known as Judicial Arbitration and Mediation Services, Inc.) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. For all purposes of these Terms of Service, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, San Francisco County, California, or the Northern District of California. Any arbitration under these Terms of Service will take place on an individual basis: class arbitrations and class actions are not permitted. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THESE TERMS OF SERVICE, YOU AND WOMPLY ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
- 15.11 Womply’s 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.
- 16. RISN NETWORK TERMS. Womply may offer you the opportunity to promote certain card-linked offers (“Card-Linked Offers”) to your in-store customers through Womply’s relationship with the Rakuten In-Store Network (“RISN”). If you opt to participate in these promotions, the following terms also apply to you:You hereby grant to Womply, RISN and Selected RISN Publishers (defined below) the permission to publish and promote Merchant Promotion Material (defined below), including any trademarks, service marks, logos or other brand designations included in the Merchant Promotion Material (“Marks”). “Selected RISN Publishers” means publishers in the RISN network to whom Womply opts to provide the promotional material you have provided to Womply for such purpose (“Merchant Promotion Material”). For clarity, Merchant Promotion Material is Content.
- You represent and warrant you have the right to provide any Merchant Promotion Material in connection with the RISN promotions;
- You, and not RISN or Womply, are responsible for handling customer service issues with respect to goods and services sold in connection with the Card Linked Offer (each such transaction with your customer that meets the requirements for earning the reward described in the Card-Linked Offer, a “Qualified Purchase”). You may choose to grant refunds to your customers for Qualified Purchases in your discretion. However, you will not be eligible to receive any refund from Womply for amounts you paid Womply in connection with such Qualified Purchase, unless: (a) you granted the customer his or her refund within sixty (60) days following the original Qualified Purchase, and (b) such refund matches the exact dollar amount of the Qualified Purchase. Additional restrictions may apply to refunds and will be designated at the time of your agreement with Womply and RISN on the terms of each Card-Linked Offer;
- You will indemnify, defend, and hold harmless RISN and Selected RISN Publishers, and their respective officers, directors, employees, and agents (“RISN Indemnified Parties”) against any loss, liability, judgment, penalty, damage or expense (including reasonable attorneys’ fees and costs) awarded resulting from any third-party claim, suit, action or other proceeding brought against any RISN Indemnified Parties related to the following: (a) any claim or allegation that the Merchant Promotion Material, including any Marks made available by you, infringe any intellectual property right of any third party; (b) any claim related to the products and services offered, performed, or sold in connection with the Card Linked Offer; and/or (c) any claim related to your gross negligence or willful misconduct;
- You will provide any other materials, information, and/or rights reasonably requested by Womply as necessary to promote your Card-Linked Offers in connection with RISN and the Selected RISN Publishers.