PLEASE READ THESE TERMS AND CONDITIONS] OF USE CAREFULLY. THESE TERMS AND CONDITIONS OF USE MAY HAVE CHANGED SINCE YOUR LAST VISIT TO THIS WEBSITE AND TO THE SERVICES ON THIS WEBSITE. YOU AGREE TO CHECK FOR UPDATES TO THESE TERMS AND CONDITIONS OF USE. BY USING THIS WEBSITE OR THE SERVICES, YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS OF USE. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS OF USE, THEN YOU MAY NOT USE THIS WEBSITE OR THE SERVICE.
Last Updated: November 15, 2018
Promoboxx, Inc. (“Promoboxx” or “we” or “us”) provides access through its website at promoboxx.wpengine.com (the “Site”) to tools, features and services (together with the Site, along with associated and successor websites, tools, services, and features, or any part thereof, the “Service”) that help a Brand (as defined below) develop and share with its Retailers (as defined below) the Brand’s marketing online content, and in some cases online campaigns (each, a “Campaign”) that enable a Brand’s Retailers to participate in, customize (as permitted by these Terms), and share the Content and/or Campaigns with consumers (including through online channels, such as Facebook, Twitter, and other third party websites, and via email).
We may amend this Agreement from time to time due to changes to the Site or the Service, to account for developments under the law, or for any other commercially reasonable purpose. Future performance by us of our obligations under this Agreement is sufficient consideration for any such amendment. Any amendment will only become effective upon notification to you (by email or by posting on our Site), and if you do not want to agree to any such amendment, you should stop using the Site and the Service and contact us to cancel your account.
As used herein, a “Brand” means an individual or entity (or a regional retailer sales and/or marketing group, media or marketing partner, strategic or technology partner, sales representative, agency, or distributor acting on such individual or entity’s behalf) that has entered a subscription with Promoboxx for use of the Service and is associated with, and whose goods and/or services may be identified by, a distinctive name, trademark, and/or service mark or a collection thereof; a “Retailer” means an individual or entity that sells or makes available the goods and/or services of one or more Brands to consumers and is invited to use the Service by one or more Brands. By using the Service, you agree that you will be considered either a Brand or a Retailer and you will be bound by this Agreement.
1. Access to the Service.
Promoboxx shall make the Service available to Brands via a statement of work or other order form and to Retailers when invited by a Brand or Promoboxx, in all cases pursuant to the terms and conditions set forth in this Agreement and any applicable ordering document. Your continued access to the Service will depend upon your status as either a Brand or a Retailer. A Brand’s access to the Service will terminate upon expiration of the subscription term set forth in an applicable ordering document entered by the Brand and Promoboxx (hereinafter, an “Order”) or in accordance with any other applicable terms in the Order or this Agreement.
You shall bear all costs of procuring and delivering your Campaigns, products and services, including any associated shipping, taxes and any other fees associated therewith. You hold all necessary governmental and third party licenses, approvals, authorizations and registrations necessary to offer your Campaigns, products and services. You agree to provide your Campaigns, products and services in a safe and professional manner, consistent with industry best practices, including keeping reliable records. In any event, you are solely responsible for your Campaigns, products and services, including any and all injuries, damages, claims, liabilities and costs suffered in respect thereto.
You will be solely responsible for compliance with any and all statements and promises you make in connection with, and for all user assistance, support and warranty coverage associated with, your Campaigns, products and services. You agree that i) your Campaigns will prominently include any applicable rules, restrictions or limitations necessary to comply with applicable law, this Agreement and your own requirements, ii) any such rules, restrictions or limitations will be properly presented to each prospective purchaser before such prospective purchaser is bound to make a payment or take any other action, and iii) you will comply with such rules, restrictions or limitations. You further agree to provide sufficient contact information for any customer questions, complaints or claims.
3. Restrictions; Limitations on Use; Reservation of Rights.
- You will not (i) copy, reverse engineer, decompile, disassemble, re-engineer, or otherwise create or attempt to create, or permit, allow, or assist others to create, the source code of the Service, or its structural framework, or (ii) modify or create derivative works of the Service or use the Site or the Service in whole or in part for any purpose except as expressly provided under this Agreement.
You further agree to comply with the following in connection with your use of the Site and the Service:
- You will not post or distribute any materials that are abusive, libelous, defamatory, vulgar, profane, obscene, fraudulent or deceptive; that violate another’s rights (including without limitation any copyrights or other intellectual property rights), confidentiality or privacy; or that harass, threaten, annoy, or are otherwise inappropriate, all as determined by Promoboxx in its sole discretion.
- You will refrain from unethical, false or misleading advertising, promotions or sales efforts and practices in connection with your use of the Site or the Service.
- You will not post or transmit any improper advertising, such as chain letters and pyramid schemes; post or transmit any file that contains viruses, corrupted files, “Trojan Horses,” or other contaminating or destructive features that may damage someone’s computer; or take any action that imposes an unreasonably or disproportionately large load on our infrastructure or damages or disrupts the functioning of our systems or Service. We reserve the right to impose charges on any user or account holder whose use of our Service we deem to be excessive.
- If you are accessing the Service on behalf of an entity, you will comply with such entity’s online conduct and privacy policies.
- You will use the Service in compliance with all applicable laws, rules, regulations, and industry standards. You may not use the Site or the Service for any unlawful or discriminatory activities, including acts prohibited by the Federal Trade Commission Act, Fair Credit Reporting Act, Equal Credit Opportunity Act, CAN-SPAM Act, or other laws that apply to commerce.
- You will comply with the terms of service and policies of any online channel or third party service or web site, including any social media outlet, that you use in connection with the Service. In no event will you upload, or use the Service to distribute, private or confidential information if such use or distribution is unauthorized by any party or may violate any applicable laws, rules or regulations.
- You expressly acknowledge that unauthorized access to the Service is a breach of this Agreement and may also violate the law. You agree not to access our Service by any means other than through the interfaces we provide.
- You will not falsely identify the source of any communications or materials, deliberately mislead anyone as to your identity (including impersonating a representative of Promoboxx), use the Service to transmit unsolicited email, disclose material, non-public information about any company, or otherwise act contrary to any applicable laws, rules or regulations.
- You are responsible for statements made and actions taken through your use of the Service and through use of your password. You agree to immediately notify us of any actual or suspected unauthorized use of your user name and/or password.
You agree that Promoboxx may establish general practices and limits concerning use of the Site or the Service. We reserve the right to modify, revise, suspend or discontinue any functionality in whole or in part, either temporarily or permanently and with or without notice, and you acknowledge that we are not obligated to support or update the Service in any manner. If we discontinue any functionality in its entirety that you are using, we will provide you with advance notice and an opportunity to cancel your account.
Promoboxx will at all times solely and exclusively own all right, title, and interest in and to this Site and the Service, and all intellectual property or other rights in the foregoing, including but not limited to any and all modifications and derivative works. No implied licenses are granted.
4. Content; Uploaded Materials.
You agree that all user information, text, data, software, sounds, photographs, audio, audiovisual, video, artwork, graphics, messages, feedback, data, comments, suggestions, and other content of any nature that are created, customized, or transmitted to, via, or in connection with the Site or the Service (collectively, the “Content”) are the sole responsibility of the person or entity making such Content available for use with the Service. Accordingly, you, and not Promoboxx, are entirely responsible for the Content you create, customize, or transmit through or in connection with the Service. You represent and warrant that you have the applicable rights necessary to post or upload your Content to the Service and permit use of the Content in connection the Service. You hereby license Promoboxx any and all rights necessary to use the Content to provide the Service to you, and if you are a Brand, to sublicense rights to use the Content to your Retailers. You will indemnify, and hold harmless, Promoboxx and any users of the Site or the Service for any claims, damages or other liability arising as a result of use of the Content rights granted herein or your breach of such representation and warranty.
5. Account and Passwords.
You agree to provide true, accurate, current and complete information about yourself and your organization, as applicable, as requested in the registration form and elsewhere on the Site and in connection with the use of the Service, and agree to update such information if it changes. You are responsible for statements made and actions taken on the Service by you or under your account or through the use of your password. You agree to immediately notify us of any actual or suspected unauthorized use of your user name, password or account.
6. Privacy Overview.
7. Data Retention and Security.
You agree that Promoboxx has no responsibility or liability for the deletion or failure to store any data, Content, or other communications or materials related to a Campaign or otherwise maintained or transmitted by, or in connection with, the Service. You acknowledge that Promoboxx may have set no fixed upper limit on the number of transmissions you may send or receive through the Service or the amount of storage space used; however, we retain the right, at our sole discretion, to create limits at any time upon thirty (30) days prior notice. Without limitation of the foregoing or any of its other obligations under this Agreement, Promoboxx agrees that for as long as Promoboxx controls, possesses, stores, transmits or processes User Data (as defined in Section 11 below), Promoboxx will establish, employ and maintain reasonable and industry standard data security measures that include technological, physical, administrative, organizational and procedural controls designed to: (1) protect User Data from unauthorized or unlawful use, alteration, access or disclosure, (2) ensure the availability of Promoboxx’s systems, and (3) prevent unauthorized access to, and unauthorized use of, Promoboxx’s systems.
8. Service Levels and Interruption.
Promoboxx will use commercially reasonable efforts to provide the Service in accordance with the then-current Service Level Guidelines available at https://promoboxx.wpengine.com/sla (the “Service Level Guidelines” or “SLA”) . Notwithstanding anything to the contrary herein, we reserve the right to amend the Service Level Guidelines at any time and to temporarily modify, suspend or discontinue our Service (or any part of thereof) with or without notice if we reasonably believe such action is necessary for effective operation of the Service, including the avoidance of an actual or potential security breach. You agree that we will not be liable to you or to any third party for any such modification, suspension or discontinuance of the Service.
9. Third Party Sites.
The Site and the Service include social media tools that may, among other things, allow you to manage access, post and manage content on social network platforms (for example, Facebook, Twitter and LinkedIn) and provide access to websites and services that are controlled by third parties (each, a “Social Media Platform”). You hereby grant us all required permissions to access such Social Media Platforms on your behalf to provide the Service to you, including the use and analysis, for your benefit, of information made available by the Social Media Platforms.
You agree to abide by the terms and conditions of any applicable Social Media Platform. Notwithstanding anything set forth herein to the contrary, you will abide by this Agreement regardless of anything to the contrary in your agreement with any third party, and you shall not use such Social Media Platform to avoid the restrictions set forth in this Agreement.
We may terminate any Social Media Platform’s ability to interact with the Site or the Service at any time, with or without notice, and in our sole discretion, with no liability to you or to any third party. Each Social Media Platform may take actions to impact our ability to make available some or all of the features of the Site or the Service at any time, with or without notice, and we will not be liable to you or to any third party for any such actions. We accept no responsibility for reviewing changes or updates to, or the quality, content, policies, nature or reliability of, any Social Media Platform.
You acknowledge that any ideas, suggestions, concepts, processes or techniques which you provide to us related to the Service, Promoboxx or its business (collectively, the “Feedback”) shall become the property of Promoboxx without any compensation or other consideration payable to you by us, and you do so of your own free will and volition. We may, in our sole discretion, use the Feedback in whatever form or derivative in connection with the Site, Service, or our business or other products or services. You hereby assign all rights in any Feedback to us and, as applicable, waive any moral rights.
11. User Data and Aggregated Data. As used herein, “User Data” means any data or Content that you or your authorized users lawfully upload, submit or otherwise transmit to or through the Site or the Service. As between you and us, you will retain all right, title and interest in and to the User Data in the form provided to us, subject to, in the case of Brands, Section 17.2, and in the case of Retailers, Section 18.3. Subject to the terms of this Agreement, you hereby grant to Promoboxx a non-exclusive, worldwide, royalty-free right (a) to collect, use, copy, store, transmit, distribute, display, publicly perform, modify and create derivative works of the User Data, in each case solely to the extent necessary, to provide the Service and any related services to you and to enhance the Service; and (b) to use Aggregated Data for its business purposes including, but not limited to, developing, publishing and commercializing benchmarks, predictive models, predictive analytics, and measures based on Aggregated Data. As used herein, “Aggregated Data” shall mean User Data that is (i) anonymized such that it does not identify any individual person, and (ii) combined with the data of other users or additional data sources. Our rights with respect to Aggregated Data will survive any expiration or termination of this Agreement. We retain all Intellectual Property Rights in the Aggregated Data.
12. Use of Name.
We may include your name in our published client lists, but will not issue a press release or any other publicity referring specifically to you without your prior written consent. .
13. Warranty Disclaimer; Remedies; Release. YOU EXPRESSLY AGREE THAT THE SITE AND THE SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SITE OR THE SERVICE AND ANY RELIANCE BY YOU UPON THE SITE OR THE SERVICE, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. WE DO NOT WARRANT THAT THE USE OF THE SITE OR THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE OR COMPLETELY SECURE, NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SAME. WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. NO STATEMENT OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US IN ANY MEANS OR FASHION SHALL CREATE ANY WARRANTY NOT EXPRESSLY AND EXPLICITLY SET FORTH IN THIS AGREEMENT.
WE SHALL HAVE NO LIABILITY OF ANY NATURE WHATSOEVER FOR YOUR COMPLIANCE WITH OR BREACH OF ANY LICENSE OR TERMS AND CONDITIONS OF ANY THIRD PARTIES OR THIRD PARTY SERVICES (INCLUDING THE SOCIAL MEDIA PLATFORMS). IN ADDITION, WE DO NOT ENDORSE AND ARE NOT RESPONSIBLE FOR (A) THE ACCURACY OR RELIABILITY OF ANY THIRD PARTY CONTENT, OPINION, ADVICE OR STATEMENT MADE BY ANYONE OTHER THAN US, OR (B) ANY CAMPAIGN, CONTENT, OR ANY PRODUCT OR SERVICE PURCHASED OR OTHERWISE OBTAINED FROM ANY THIRD PARTY, INCLUDING OUR CUSTOMERS.
NO CLAIM MAY BE ASSERTED BY YOU AGAINST PROMOBOXX MORE THAN 12 MONTHS AFTER THE DATE OF THE CAUSE OF ACTION UNDERLYING SUCH CLAIM. YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE OR NONPERFORMANCE OF THE SITE OR THE SERVICE SHALL BE FOR PROMOBOXX TO USE COMMERCIALLY REASONABLE EFFORTS TO ADJUST OR REPAIR THE SITE OR THE SERVICE. TO THE EXTENT APPLICABLE LAW PERMITS, YOU RELEASE PROMOBOXX FROM ANY CLAIMS OR LIABILITY RELATED TO (A) ANY CONTENT POSTED ON, OR OBTAINED IN CONNECTION WITH USE OF, THE SITE OR IN ANY MATERIALS YOU SEND USING THE SITE OR THE SERVICE, (B) THE CONDUCT OF ANY OTHER PROMOBOXX CUSTOMERS OR THEIR RETAILERS OR CUSTOMERS AND (C) ANY PROBLEMS THAT MAY ARISE FROM ANY REMOTE ACCESS TO YOUR COMPUTERS OR OTHER SYSTEMS YOU PROVIDE TO OUR PERSONNEL OR AGENTS FOR THE PURPOSE OF TROUBLESHOOTING ISSUES. YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 (IF YOU ARE A CALIFORNIA RESIDENT), AND ANY SIMILAR PROVISION IN ANY OTHER JURISDICTION (IF YOU ARE A RESIDENT OF SUCH JURISDICTION).
14. Limitation of Liability.
EXCEPT WITH RESPECT TO DEATH OR PERSONAL INJURY DUE TO THE NEGLIGENCE OF PROMOBOXX, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL PROMOBOXX OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, THIRD PARTY SUPPLIERS AND PARTNERS AND PROVIDERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS “PROMOBOXX”) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF PROMOBOXX SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY, AND REGARDLESS OF THE FORM OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE MAXIMUM AGGREGATE LIABILITY OF PROMOBOXX TO YOU ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE SERVICE IN THE 12 MONTHS PRIOR TO THE ACCRUAL OF THE APPLICABLE CLAIM, LESS ANY DAMAGES PREVIOUSLY PAID BY PROMOBOXX TO YOU IN THAT 12 MONTH PERIOD. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
You agree that Promoboxx has set its prices and entered into this Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that they reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that they form an essential basis of the bargain between the parties.
You agree to indemnify and hold harmless Promoboxx and its affiliates, licensors, agents, business partners and third party suppliers and providers, and our and their officers, directors, shareholders, employees, and agents, from and against any claim, demand, or investigation, including reasonable attorneys’ fees, made by any third party relating to or arising from your Content, your Campaign(s), your use of the Site or Service, your conduct, your actual or alleged breach of this Agreement, or your actual or alleged violation of any law, rule, regulation, industry standard or right of a third party in connection with your Content, Campaign(s), or use of the Site or Service. You agree to provide us with prompt written notice in the event of any such claims or actions. Promoboxx reserves the right, at its own expense, to assume exclusive control of any matter otherwise subject to indemnification by you, but doing so will not excuse your indemnity obligations under this Agreement. In addition, you acknowledge and agree that Promoboxx has the right to seek damages when you use the Site or the Service for unlawful purposes, in an unlawful manner, or in a manner inconsistent with the terms of this Agreement, and that such damages may include, without limitation, direct, indirect, special, incidental, cover, reliance and/or consequential damages. In the event that Promoboxx is required to respond to a third party or law enforcement subpoena or court order that is related to your use of the Site or the Service, Promoboxx may, in its sole discretion, require you to reimburse us for our reasonable expenses associated with complying with such subpoena or order.
In addition to any other rights and remedies set forth herein, we can terminate these Terms or your access to the Service (i) at any time, without prior notice and at our sole discretion, for your willful misconduct, malicious behavior, or your actual, apparent, threatened or alleged breach of Section 3 of these Terms; or (ii) your failure to make any necessary payments within ten (10) days of our written notice to you of your breach of payment obligations under this these Terms. In addition, either party may terminate these Terms by written notice to the other if the other party has failed to cure a material breach within thirty (30) days of receipt of notice of such breach. Upon termination of these Terms: (i) we will cease providing you with the Service and your access to the Service shall terminate; (ii) you will return to us all copies of any documentation and any other of our confidential information in your possession; and (iii) you will immediately pay all amounts owed. Upon termination of these Terms by you as set forth above due to a material breach by Promoboxx, Promoboxx will refund any prepaid and unused Subscription Fees (as defined in Section 17.4 below) for the Service as of the effective date of such termination.
17. Terms and Conditions Applicable to Brands. The following terms apply solely to Brands:
17.1 Compliance with Laws and Retailer Agreement(s). You acknowledge and agree that the Service enables you to develop and share your Campaigns online with your Retailers and that the Service provides no safeguards that ensure that you operate (or that Retailers participate in, customize, or share with consumers) any of your Campaigns properly or legally. You represent, warrant, and covenant that in using the Service and in creating, advertising, marketing and operating your Campaign(s), you will comply with all applicable laws, rules, regulations, and industry standards, including without limitation the Federal Trade Commission Act, Fair Credit Reporting Act, Equal Credit Opportunity Act, CAN-SPAM Act, or other laws that apply to commerce, the standards of the Mobile Marketing Association, and (except to the extent that these violate applicable law) your agreements with any Retailer or other third parties. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT THE SERVICE, AND ALL TOOLS AND RESOURCES MADE AVAILABLE THROUGH THE SERVICE, ARE PROVIDED FOR YOUR CONVENIENCE AND REFERENCE, BUT WITHOUT ANY WARRANTY THAT USING THE SERVICE, OR SUCH TOOLS OR RESOURCES, WILL COMPLY WITH THE LAW. THE LAWS REGARDING MARKETING CAMPAIGNS AND ADVERTISING VARY FROM STATE TO STATE AND COUNTRY TO COUNTRY; IT IS YOUR RESPONSIBILITY TO CONSIDER THE LAWS IN THOSE JURISDICTIONS IN WHICH YOU WILL OPERATE YOUR CAMPAIGN TO ENSURE THAT IT MEETS APPLICABLE LEGAL REQUIREMENTS. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT PROMOBOXX WILL HAVE NO LIABILITY FOR A CAMPAIGN’S FAILURE TO MEET SUCH REQUIREMENTS OR TO COMPLY WITH ANY APPLICABLE LAWS.
17.2. Access to Information and Data. Notwithstanding anything to the contrary herein, by using the Service and/or participating in a Campaign, you agree that Promoboxx may share with the respective Retailer(s) associated with your account campaign information that you have approved for distribution to such Retailer(s), the analytical ranking of respective Retailer(s) in comparison to other Retailer(s) associated with your account (assuming that you have enabled the Retailer(s) to view these analytics), divisional analytics (assuming that you have enabled the Retailer(s) to view these analytics), and aggregate Brand(s) performance benchmarking. In addition, you agree that (a) Promoboxx may show a Brand its respective performance benchmarked against other Brand(s) using the Service, and (b) Promoboxx may use Retailer specific information provided by you (“Retailer Specific Data”) for its business purposes. Other than User Data that is not Retailer Specific Data, any data or information provided, sourced, input, and/or created by us with respect to any Brand or Retailer may be freely shared and/or used by us, and as between you and us, shall be owned by us.
17.3 Subscription Term. As used herein, “Subscription Term” means the initial term of your subscription, as specified on your Order Form(s), and each subsequent renewal term, (if any).Unless otherwise specified in the applicable Order Form, the initial term and any subsequent renewal term shall automatically renew for successive periods equal in length to the initial term (each, a “Renewal Term”), unless either party provides written notice of non-renewal at least ninety (90) days prior to the expiration of the Initial Term or then-current Renewal Term. The Initial Term and any Renewal Term(s) are collectively referred to as the “Term.” Promoboxx fees associated with this contract are subject to change upon renewal.
17.4 Fees. As used herein, an “Engaged Location” (or an “EL”) is a single physical location, having only one physical address, that belongs to, or is operated by and under control of, a Retailer that has promoted your content via the Service within the previous ninety (90) days; a “Retailer Seat” is a Retailer that is granted access to the Promoboxx Perform module portion of the Service. To the extent applicable to your use of the Service, the number of ELs associated with your account will be calculated on the last day of each calendar month (hereinafter, the “Measurement Date”). Unless otherwise stated in the Order Form, the applicable subscription fee associated with your use of the Service (the “Subscription Fee”) will remain fixed during the applicable Subscription Term unless you: (i) exceed the maximum ELs included in your starting subscription tier, as specified in the Order Form, (ii) upgrade products or base packages specified in the Order Form by notifying us in writing or amending the Order Form, or (iii) subscribe to additional features or products in accordance with these Terms and the Order Form. Once increased as specified herein, your Subscription Fee will not decrease over the then-current Subscription Term, even if the number of ELs associated with your account decreases.
17.5 Payment Terms. You will be invoiced as set forth in the applicable Order Form. Unless otherwise specified in an Order Form, you will pay all invoices within thirty (30) days of the invoice date. All payments will be made in U.S. currency by check or wire transfer of immediately available funds to the account designated in writing by us. All payments are non-refundable. Any invoice not paid by you within thirty (30) days of the invoice date shall accrue interest until paid at a rate of one and one-half percent (1.5%) per month (eighteen percent (18%) per annum) or the maximum rate permitted by law, whichever is less. If any amount is not paid when due hereunder, we will be entitled to recover from you the costs and expenses incurred in connection with collecting the same (including without limitation costs of investigation and attorney fees).
17.6 Taxes. Fees charged do not include sales, use, value added, withholding, excise or similar tax. You will pay or, if paid by us, reimburse us, for all such taxes based on these Terms or fees payable hereunder (but not any taxes based upon our gross revenues or net income), together with any interest on such taxes if not attributable to our delay.
18. Terms and Conditions Applicable to Retailers. The following terms apply solely to Retailers:
18.1. Compliance with Laws and Brand Agreement(s). You acknowledge and agree that the Service enables you to participate in, customize (as permitted by the respective Brand), and share with consumers the Campaigns of your associated Brands online, and that the Service provides no safeguards that ensure that you or Brands operate (or that you or Brands participate in, customize, or share with consumers) a Campaign properly or legally. You represent, warrant, and covenant that in using the Service and in participating in, customizing (as permitted by the respective Brand), and sharing with consumers the Campaigns of your associated Brands, you will comply with all applicable laws, rules, regulations, and industry standards, including without limitation the Federal Trade Commission Act, Fair Credit Reporting Act, Equal Credit Opportunity Act, CAN-SPAM Act, or other laws that apply to commerce, the standards of the Mobile Marketing Association, and (except to the extent that these violate applicable law) your agreements with any Brand or other third parties. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT THE SERVICE, AND ALL TOOLS AND RESOURCES MADE AVAILABLE THROUGH THE SERVICE, ARE PROVIDED FOR YOUR CONVENIENCE AND REFERENCE, BUT WITHOUT ANY WARRANTY THAT USING THE SERVICE, OR SUCH TOOLS OR RESOURCES, WILL COMPLY WITH THE LAW. THE LAWS REGARDING MARKETING CAMPAIGNS AND ADVERTISING VARY FROM STATE TO STATE AND COUNTRY TO COUNTRY; IT IS YOUR RESPONSIBILITY TO CONSIDER THE LAWS IN THOSE JURISDICTIONS IN WHICH YOU WILL OPERATE YOUR CAMPAIGN TO ENSURE THAT IT MEETS APPLICABLE LEGAL REQUIREMENTS. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT PROMOBOXX WILL HAVE NO LIABILITY FOR A CAMPAIGN’S FAILURE TO MEET SUCH REQUIREMENTS OR TO COMPLY WITH ANY APPLICABLE LAWS.
18.2 Additional Right to Terminate. In addition to the termination rights specified in Section 16 above, Promoboxx may terminate your access to the Service, at any time, without prior notice, and at our sole discretion for any reason.
18.3 Access to Information and Data. Notwithstanding anything to the contrary herein, by using the Service and/or participating in, customizing, and/or sharing with consumers a Campaign, you agree that Promoboxx may share with the respective Brand(s) associated with your account all information and data concerning you and your activity on or in connection with the Service, and that of your consumers, as such information and data pertains to such respective Brand(s) . In addition, Promoboxx may show a Brand its respective performance benchmarked against other Brand(s) using the Service. To the extent that, in connection with the Service, you receive information and/or data from a Brand or concerning the activity of a Brand (collectively, “Brand Data”), you agree that you shall hold such Brand Data in confidence and that you shall not disclose or use on another’s behalf such Brand Data unless expressly permitted in writing by the Brand as to which such Brand Data relates. In addition, you agree that (i) we may use information provided by you that is generally available (such as name, address, etc.) (the “Retailer Provided Data”) for its business purposes, and (ii) other than User Data that does not include Retailer Provided Data, any data or information provided, sourced, input, and/or created by us with respect to any Brand or Retailer may be freely shared and/or used by us, and as between you and us, shall be owned by us.
19. Restricted Persons; Export.
You hereby represent and warrant that you are not a Restricted Person. For purposes of this Agreement, you are a “Restricted Person” if you or any officer, director, or controlling shareholder of the entity on behalf of which you are using the Site or the Service is (a) a national of or an entity existing under the laws of any country with which U.S. persons are prohibited from engaging in transactions, as may be determined from time to time by the U.S. Treasury Department; (b) designated as a Specially Designated National or institution of primary money laundering concern by the U.S. Treasury Department; (c) listed on the Denied Persons List or Entity List by the U.S. Commerce Department; (d) engaged in nuclear, missile, chemical or biological weapons activities to which U.S. persons may not contribute without a U.S. Government license; or (e) owned, controlled, or acting on behalf of a Restricted Person. If you become a Restricted Person during the term of this Agreement, you shall notify us within 24 hours, and we shall have the right to terminate any further obligations to you, effective immediately and with no further liability to you; provided, however, for the avoidance of doubt, you will remain liable to us for any outstanding obligations hereunder. You agree that you shall not utilize the Site or the Service to conduct or facilitate any transaction with any Restricted Person, except as may be expressly authorized in advance in writing by the U.S. Government. You may not remove or export from the United States or allow the export or re-export of the Site or the Service, or any direct product thereof, including technical data, in violation of any restrictions, laws, or regulations of the United States or any other applicable country.
20. Copyright Policy and Takedown Procedures; Copyright Agent
If you believe that any of the Content or materials appearing on or transmitted through the Service infringe your copyright or other intellectual property, please send a notice to us at the address specified in this section below. Your notice should contain the following: a physical or electronic signature of a person (i.e., the claimant) that is the copyright owner or authorized to act on behalf of the copyright owner; identification of the copyrighted work claimed to be infringed; identification of the content or material claimed to be infringing; a reference or link to the infringing material or activity, or the subject of the infringing activity, including information to enable us to locate that material or reference; the address, telephone number or email address of the claimant; a statement that the claimant has a good faith belief that complained of use of the material is not authorized by the copyright owner, its agent, or the law; and a statement that the information in the notice is accurate and indicating that “under penalty of perjury” the claimant is the copyright owner or authorized to act on the copyright owner’s behalf. Promoboxx maintains a policy to respond promptly to claims of copyright infringement, to remove, or disable access to, infringing material and to terminate use of our Service, or take other appropriate action, against repeat infringers. Promoboxx’s designated agent to receive notification of copyright issues relating to the Site or the Service is as follows:
Chief Executive Officer
500 Harrison Avenue, Studio 3R
Boston, MA 02118
Use this contact information solely for notices under this Copyright Policy. All other notices, comments, or other communications under this Agreement should be sent to the contact stated under “Communications” below.
21.1 Communications. (i) all communications (except as noted under Copyright Policy) should be sent to: email@example.com. If you have any questions about this Agreement, or would like to report any inaccuracies or errors, please contact us by email at firstname.lastname@example.org (ii) we may include your name in our published client lists, but will not issue a press release or any other publicity referring specifically to you without your prior written consent.
21.2 Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy.
21.3 Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts. All legal actions in connection with the Agreement shall be brought in the state or federal courts located in Boston, Massachusetts.
21.4 Full Force and Effect and Further Assurances. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. You agree to execute any and all documents and take any other actions reasonably required to effectuate the purposes of this Agreement.
21.5 Assignment. You may not assign any of your rights hereunder. We may assign all rights to any other individual or entity in our sole discretion.
21.6 Force Majeure. We are not liable for any default or delay in the performance of any of our obligations under this Agreement if such default or delay is caused, directly or indirectly, by forces beyond our reasonable control, including fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for us to perform our obligations hereunder.
21.7 Third Parties; No Agency. Except as expressly set forth in this Agreement, nothing in this Agreement is intended to confer, nor shall anything herein confer, upon any person other than the parties and the respective permitted successors or assigns of the parties, any rights, remedies, obligations or liabilities whatsoever. Except as expressly set forth herein, no agency, partnership, joint venture, or employment is created as a result of this Agreement, and you do not have any authority of any kind to bind us in any respect whatsoever.
21.8 Attorney Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its costs and attorneys’ fees.
21.9 Headings. The heading of each section of this Agreement are for convenience only and have no legal or contractual effect.