SKUx Terms & Conditions
Updated: August 5, 2024
Welcome to SKUx! SKUxchange, Inc. (“Company,” “we,” “us,” or “our”) are pleased to provide access to our “Service,” which means our proprietary platform as a service through which we facilitate the generation and distribution of Digital Offers to Unique Users (often utilizing “one-time-use” Payment Codes) for Redemption at the Redemption Locations identified in the applicable SOW.
These Terms & Conditions (“T&Cs”), together with that Usage Agreement executed by us and the Client (“Client,” “you” or “your”) listed in the Usage Agreement executed by and between us and Client, and each applicable Statement of Work (“Statement of Work” or “SOW”), collectively constitute the “Agreement” and govern Your use of the Service and any related Professional Services. Capitalized terms used in these T&Cs have the meanings ascribed to them in these T&Cs, including those terms set forth in Section 17, or by the applicable Statement of Work (SOW). Company and Client are sometimes referred to in these T&Cs as, together, the “Parties”.
We update these T&Cs from time to time, provided that the version of these T&Cs in effect at the time of execution of the Usage Agreement will apply to you without modification, unless you and we otherwise agree in a separate writing.
Please review these T&Cs carefully. You accept these T&Cs by executing the Usage Agreement. If you do not agree with these T&Cs, or any portion of these T&Cs (including any portion of our Privacy Policy), you must not access or use the Service.
Table of Contents:
- The Service
- Use Restrictions
- Client Obligations
- Intellectual Property Rights
- Data Backup; Data Privacy and Security
- Compliance with Law
- Non-Solicitation and Non-Circumvention
- Limited Service Warranty; Disclaimer
- Representations and Warranties; Indemnification
- Limitations Of Liability; Mutual Waiver of Class Action Participation
- Assignment
- Term and Termination
- Confidentiality
- Audit
- Miscellaneous
- Pilot Programs
- Certain Defined Terms
- The Service: SKUx offers an innovative payments platform using the latest fintech to enable instant, seamless, secure, mobile-first, digital offers between our clients and the consumers they serve.
- General. We will use commercially reasonable efforts to make the Service available to you and to provide your internal Authorized Users with access to our standard customer support in respect of the Platform, except during any circumstances beyond our reasonable control or scheduled or unscheduled emergency maintenance. All Authorized Users must be subject to confidentiality, use restrictions and intellectual property provisions at least as restrictive and protective of us as those set forth in these T&Cs. You and each of your Authorized Users will access and use the Service (including the Platform) solely in accordance with the conditions and limitations set forth in the Agreement and any Platform or Service Documentation, including, without limitation, any end user license agreement and/or general terms of use applicable to the Platform. The authorization set forth in this paragraph is non-exclusive and non-transferable. You shall ensure all Authorized Users’ compliance with the Agreement, including, without limitation, the use restrictions, the data privacy and security provisions, and any other restrictive covenants set forth in these T&Cs. You will be solely and exclusively responsible for any breach of any provision of the Agreement by your Authorized Users and/or any other persons accessing the Service or Platform directly or indirectly through you or your Authorized Users. Notwithstanding anything to the contrary, You acknowledge and agree that:
- we are solely providing you with access to our technology that facilitates the delivery by you of Digital Offers to Unique Users, and that neither the Service, nor any Company Materials are meant to or will provide Unique Users or any other end users of your products or services with any services;
- the applicable Digital Offer issuer, and not us, is the seller of the Digital Offers, and we are solely acting as a conduit through which you (or your Customers) acquire Digital Offers and distribute them to Unique Users;
- you are solely responsible for ensuring that each consumer participating in a Campaign is a Unique User that is eligible and qualified to participate in accordance with Company’s policies and procedures;
- the Service does not guaranty your compliance with applicable Laws, including, without limitation, Laws relating to privacy of consumer information and anti-spam, telemarketing, export control, and anti-terrorism Laws, and that your compliance with applicable Laws is ultimately your sole and exclusive responsibility; and
- we do not and will not provide any legal advice, and that any feedback, content or materials provided by us as part of or in connection with the Service and/or Professional Services do not constitute legal or other professional advice, and that you are solely responsible for determining the legality, validity and enforceability of all Client Materials (as defined below), your use of the Service, and the accuracy, accessibility, safety and reliability of any language contained within all Client Materials.
- Administrative Accounts. In the event we grant you access to the administrative functionality of the Platform, you acknowledge and agree that such access will be granted only to those of your employee(s) designated in the Usage Agreement and/or the applicable SOW (the “Client Admin(s)”), and to whom Company shall provide Access Credentials that grant administrative access to the Service via the Platform (“Client Account”). When applicable, the Client Admin(s) shall be solely responsible for: (a) managing the Client Account; (b) providing Access Credentials to other Authorized Users who may set-up accounts under the Client Account (each, an “Authorized User Account”) in order to access and use the Service. Each Authorized User Account shall be subject to such access levels and other restrictions as shall be established by the Client Admin in accordance with the terms and conditions of the Agreement and the applicable Documentation.
- Access Credentials. With respect to any Access Credentials issued to you or any Authorized User, you will ensure that you and each of your Authorized Users use strong Access Credentials (i.e., in the case of a password, one that is long, uses a mix of letters (upper and lower case), numbers and symbols, has no ties to the Authorized User’s personal information, and no dictionary words) even if the Service/Platform permits simple Access Credentials. You have and will retain sole responsibility for the security and use of all Access Credentials, including for any losses that you or any third party may suffer as a result of the authorized or unauthorized use of any Access Credentials by any third party. We reserve the right to disable any Access Credentials at any time in our discretion for any or no reason, including (without limitation) if, in our opinion, you or any of your Authorized Users has violated any provision of the Agreement.
- Platform Control. Except as otherwise expressly provided in the Agreement, Company has and will retain sole control over the operation, provision, maintenance, and management of the Platform.
- Designated Point of Contact. Throughout the Term, each Party shall appoint an individual designee as the primary point of contact for day-to-day communications, consultation, and decision-making regarding the Agreement. Each Party’s initial designee is as set forth in the Usage Agreement. If either Party’s designee ceases to be employed or engaged by such Party, or such Party otherwise wishes to replace its designee, that Party shall promptly name a new designee by written notice to the other Party.
- Subcontractors. Client acknowledges and agrees that Company may from time to time, in its discretion, engage third parties to render services in connection with the Agreement (each, a “Subcontractor“), provided that Company’s use of a Subcontractor shall not release Company from its obligations under the Agreement.
- Suspension or Termination of Service. Company may directly or indirectly and by any lawful means (including any disabling device) suspend, terminate, or otherwise deny Client’s, any Authorized User’s, or any other Person’s access to or use of all or any part of the Service and/or the Platform (including the suspension of any Campaign, in whole or in part) without incurring any resulting obligation or liability, if: (a) Company receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Company to do so; (b) Company believes, in its good faith and reasonable business judgment, that Client or any of Client’s Authorized Users are in breach of the Agreement, have accessed or used the Service or Platform beyond the scope of the authorization granted or for a purpose not authorized or intended under the Agreement or in any manner that does not comply with any Company instructions or requirements, or are, have been, or are likely to be involved in any fraudulent, misleading, unlawful or unethical activities (including circumstances where a Campaign goes viral), or in any activity that could reflect poorly on Company or negatively impair its goodwill; (c) the applicable SOW or the Agreement expires or is terminated; (d) Company deems it necessary or desirable in order to prevent, mitigate or address a material security issue; or (e) Client fails to pay any amounts due under the Agreement (including any failure to timely replenish the Required Minimum Balance). This Section 1.7 does not limit any of Company’s other rights or remedies, whether at law, in equity, or under the Agreement.
- Change Order. Either Party may at any time during the term of a SOW request in writing changes to the applicable SOW and/or Professional Services. Any changes to a SOW or to Professional Services must be in writing and shall only be effective if set forth in a written change order signed by authorized representatives of both Parties (each, a “Change Order”).
- Maintenance Releases; New Features. We may from time to time make or issue updates, upgrades, releases, or other adaptations or modifications of the Platform in whole or in part (collectively, “Maintenance Releases”). We may also make one or more new versions, features or modules of the Platform (in whole or in part) (collectively, “New Features”) available to you under the terms and conditions of the Agreement. Maintenance Releases and/or any New Features made available to you (if any) will constitute a part of the Platform for purposes of the Agreement. For the avoidance of doubt, we reserve the right to offer any Maintenance Releases or New Features subject to our then current, commercial pricing for the same. You acknowledge and agree that certain Maintenance Releases and/or New Features may require Professional Services for purposes of installation, configuration and/or implementation, which will be subject to your payment of Our applicable Professional Services fees then in effect.
- Third-Party Materials. You acknowledge and agree that: (a) one the Service and/or the Platform may contain Third-Party Materials; (b) the Platform and/or certain features or functionalities rely on API integration for certain features and functions, but that API integration has its own inherent level of unpredictability and inconsistency that is out of our control, and that as such we will have no liability for downtime caused by API integration failures; (c) Third-Party Materials providers may impose restrictions on use of the particular Third-Party Material (collectively, “Third-Party Requirements”); (d) You are solely responsible for compliance with, and will ensure that you and all Authorized Users comply with, all Third-Party Requirements; and (v) we may at any time terminate and/or discontinue the availability of any Third-Party Materials, including as a result of termination of our relationship with the applicable Third-Party Materials provider, provided that we will endeavor to provide you with advance written notice of any such termination or discontinuation if reasonably practical.
- Professional Services. From time to time, we may provide certain Professional Services. Unless expressly set forth in the applicable SOW or a statement of work, any Professional Services provided are our standard Professional Services, and any services beyond the scope of such standard Professional Services will be deemed out of scope and will be provided only pursuant to a mutually agreed upon Change Order or a separate statement of work. Any Results of any Professional Services will constitute a part of Company Materials subject to the terms and conditions of these T&Cs.
- Future Functionality. You acknowledge and agree that your entrance into the Agreement is not contingent on the delivery of any future functionality or features of the Service, the Platform, any other Company Materials or any Professional Services, or dependent on any oral or written public comments made by us regarding any such future functionality or features unless otherwise noted on the applicable SOW.
- Enhanced Data License. Subject to the Data Privacy and Security provisions set forth in Section 5 and all other applicable provisions set forth herein, Company may also grant Client a license to use certain Company Data pursuant to terms and conditions to be negotiated by the Parties in good faith, including, without limitation and as applicable, a description of the Personal Information of Unique Users subject to the license, corresponding pricing, the applicable data product, duration of the license (e.g., perpetual, single use, annual, etc.), and any other restrictions on Client’s use of such license or Personal Information (e.g., geographic locations, limitations on sublicensing, etc.). Once agreed upon, (i) the specific data product, duration, and corresponding pricing, shall be set forth in the applicable SOW, and (ii) all other terms and conditions shall be set forth in a license agreement to be executed by the Parties (found here: https://skux.io/enhanced-data-license/.)
- Use Restrictions: Client shall not, and shall not permit any other Person to, access or use the Service or any Company Materials except as expressly permitted under the Agreement and, in the case of Third-Party Materials, the applicable Third-Party Requirements. For purposes of clarity and without limiting the generality of the foregoing, Client shall not, and shall not permit and other Person to, except as the Agreement expressly permits, directly or indirectly: (i) copy, modify, or create derivative works or improvements of the Company Materials, the Platform or the Service (in whole or in part), or frame or mirror the whole or any part of the Platform; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Company Materials, the Platform or the Service to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code used in connection with the Platform, Company Materials or the Service, in whole or in part; (iv) bypass or breach any security device or protection used in connection with the Platform, Company Materials, or the Service or access or use the Service and the Company Materials via the Platform other than by an Authorized User through the use of his or her own then valid Access Credentials; (v) input, upload, transmit, or otherwise provide to or through the Platform, any information or materials that are unlawful or injurious, or contain, transmit, or activate any harmful code, including any virus, worm, malware, or other malicious computer code; (vi) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Service, the Company Materials, the Platform, or Company’s provision of the Service and the Company Materials via the Platform to any third party, in whole or in part; (vii) remove, delete, alter, or obscure any trademarks, Specifications, Documentation, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Company Materials, the Service or the Platform, including any copy thereof; (viii) access or use the Service or any Company Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third-party, or that violates any applicable Law, including, without limitation all applicable anti-spam, telemarketing, export control, privacy, and anti-terrorism laws and regulations; (ix) access or use the Service or any Company Materials for purposes of competitive analysis of the Platform, the Company Materials, or the Service, for other benchmarking purposes, for the development, provision, or use of a competing software service or product, or for any other purpose that is to Company’s detriment or commercial disadvantage; (x) access or use the Service or any Company Materials in, or in association with, the design, construction, maintenance, or operation of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Platform could lead to personal injury or severe physical or property damage; or (xi) otherwise access or use the Service or any Company Materials beyond the scope of the authorization granted under the Agreement, including, without limitation, by permission of direct or indirect access to or use of the Service or any Company Materials in a way that circumvents a contractual usage limit. If Client becomes aware of any actual or threatened activity prohibited by this Section 2, Client shall, and shall cause its Authorized Users to, immediately take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects, and promptly notify Company of any such actual or threatened activity.
- Client Obligations:
- Fees and Payments.
- Payment Terms. Client shall pay all Fees and other amounts due to Company as specified in the Usage Agreement and each applicable SOW. Client shall make all payments in US dollars by the method and to the address or account specified by Company in writing from time to time. All amounts payable to Company under the Agreement will be paid by Client in full without setoff or withholding for any reason or other than a deduction or withholding of tax as may be required by applicable Law.
- Changes to Fees. Company may increase Fees at any time and from time to time, provided that the Fees for the Service will be as set forth in the applicable SOW for the Initial Term. Unless otherwise agreed to in writing by the Parties, following the Initial Term, all Fees will be at Company’s then-current commercial rates, and Client’s continued use of the Service will constitute Client’s acceptance of such Fees. For the avoidance of doubt, for Professional Services, Client will pay the applicable Fees in effect at the time such Professional Services are provided, and notwithstanding anything to the contrary in the appliable SOW or otherwise.
- Late Payments. If Client fails to make any payment when due, then, in addition to all other remedies that may be available: (a) Company may charge interest on the past due amount at the rate of 1.5% per month or, if lesser, the highest rate permitted under applicable Law; (b) Client shall reimburse Company for all costs incurred by Company in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (c) if such failure continues for five (5) days following written notice thereof, Company may suspend provision of the Service until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Client or any other Person by reason of such suspension.
- Taxes. Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Client will be responsible for all Taxes associated with its purchase of access to the Service and all Professional Services. Notwithstanding the foregoing, neither Party shall be required to reimburse the other Party for taxes based on the other Party’s net income or gross receipts. Each Party shall be solely responsible for the payment of its federal, provincial, and state unemployment insurance and similar taxes and all other assessments, taxes, contributions or sums payable with respect to each Party’s employees and staff.
- Deposit Amounts. Client shall deposit the Deposit Amount(s) specified in the Usage Agreement and/or the applicable SOW (s) promptly following execution of the Usage Agreement (in the case of amounts specified and the applicable dates to meet he Usage Agreement) or as outlined in the applicable SOW (in the case of any amounts specified in the SOW). In addition, if at any time during the Term the Balance on the Deposit Account is less than the Required Minimum Deposit (as specified in the Usage Agreement and/or the applicable SOW(s)) Company will notify Client accordingly (the “Replenishment Notice”), and Client shall immediately replenish the Deposit Account to the extent of the Required Minimum Deposit. Client acknowledges that Company will not remit the offer value of any Digital Offers Claimed by Unique Users after the date of such Replenishment Notice unless and until the Minimum Deposit Amount has been fully replenished.
- Fees and Payments.
- Client Systems. Client has and will retain sole control over the operation, maintenance, and management of, and all permitted access to and use of, the Client Systems, and shall have the sole responsibility for all access to and use of the Service by Authorized Users, including any information, instructions, or materials provided by any of them to Company, results obtained from any use of the Service, and conclusions, decisions, or actions based on such use. Client shall be responsible at all times for the maintenance and operation in good repair of all Client Systems. You acknowledge and agree that failure to obtain and maintain Client Systems, to meet any applicable technical requirements of or relating to the Platform, or to obtain any third-party rights, licenses and/or consents necessary to connect to, integrate with, access or otherwise use the Platform and/or the Service (in whole or in part), may cause the Platform and/or the Service to (in whole or in part) be unavailable, or function ineffectively or inappropriately. We will in no event be responsible for any downtime, losses, failures or liabilities that arise as a result of any of the foregoing.
- Cooperation. You will cooperate with us in all respects, including provision of information, access and support as may be reasonably required for purposes of our performance under the Agreement. Without limiting the generality of the foregoing, you will: (i) provide Company Personnel with such access to Client Systems as is necessary for Company to perform its services hereunder and for Company to provide access to and use of the Service in accordance with the Agreement, including each SOW; (ii) ensure that your Authorized Users and/or information technology team respond to our requests for information, materials or cooperation promptly and without undue delay, and in any event, within two business days of the request; and (iii) ensure that you and each of your Authorized Users comply with the instructions and requirements provided by Company regarding the method of transmission, number, and volume of Digital Offers distributed by Client and/or its Customers in connection with each Campaign.
- Client Materials. You will ensure (and represent, warrant and covenant) that Digital Offers, Client Data and all other information, Content or other materials (including any documents, data, Specifications, Software, Content, or technology) provided by you or your Authorized Users or your or any of their respective representatives to us, via the Platform or otherwise (collectively, “Client Materials”) as well as your activities in connection with, use of or access to the Service and/or the Platform are accurate, complete and do not and will not violate any Laws or infringe on a third party’s Intellectual Property Rights or other rights. You will be solely and completely responsible for the accuracy, quality and legality of any and all of Client Materials, the means by which you acquired Client Materials, and the use of the same by you, your representatives and by us as contemplated by the Agreement. Without limiting the generality of the foregoing, if Client Materials include any Personal Information, then you will ensure that your and your representatives’ collection and submission to us of the same, and your, your representatives’ and our use and storage of the same as contemplated by the Agreement does not violate any third party rights, and otherwise complies with Laws, including, without limitation, any Laws relating to the consent of or disclosure to consumers with respect to the collection, use or disclosure of such information as contemplated by the Agreement. If we receive information indicating or otherwise reasonably believe that all or any portion of any Client Materials or use of the Service and/or the Platform in connection therewith may violate Laws, any third-party rights or otherwise could reflect poorly on us or negatively impair our goodwill, then we may so notify you and, if you fail to remove or modify the relevant portion of Client Materials within two business days, then we may delete or otherwise suspend the use or display of the relevant portion of Client Materials as part of the Service. Under no circumstances will we be liable in any way for any errors or omissions in Client Materials, or for any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to any Client Materials.
- Effect of Client Failure or Delay. We will not be responsible or liable for any late delivery or delay or failure of performance caused in whole or in part by your, your Authorized Users’ or your or any of their respective representative’s delay in performing, or failure to perform, any act or omission required by the Agreement or as is or was otherwise reasonably necessary for us to perform under the Agreement. For the avoidance of doubt, you will be responsible for payment for additional hours of work caused by any delay or failure caused in whole or in part by you, your Authorized Users or your or any of their respective representatives at the rates in effect for the relevant Professional Services at the time of such delay or failure.
- Intellectual Property Rights:
- Platform; Service; Company Materials. All right, title, and interest in and to the Service, the Platform, and all other Company Materials (including the Company Data, Resultant Data and any Results), and all Intellectual Property Rights therein, are and will remain with and shall be owned by Company, and, with respect to Third-Party Materials, the applicable third-party providers (if any) own all right, title, and interest, including all Intellectual Property Rights, in and to the Third-Party Materials. Client has no right, license, or authorization with respect to any of the Service, the Platform, or any other Company Materials or Third-Party Materials, except as expressly set forth in the Agreement. All other rights in and to the Service, the Platform, and all other Company Materials are expressly reserved by Company. In furtherance of the foregoing, Client hereby unconditionally and irrevocably grants to Company an assignment of all right, title, and interest in and to the Service, the Platform, and any other Company Materials that it may by virtue of the Agreement acquire, including all Intellectual Property Rights relating thereto; provided, however, that Company hereby grants to Client the right to use Resultant Data pursuant to the Company Data License for the purposes set forth herein. Without limiting the generality of Section 13 of these T&Cs, Client shall treat Company Data and Resultant Data as Company’s Confidential Information hereunder.
- Improvements. In addition, and except as otherwise provided herein, Company shall exclusively own and have the right to freely use all ideas, inventions, feedback, suggestions, improvements, enhancements, modifications and other developments relating to the Service and/or any Company Materials, including, by way of example but without limitation, any suggestions for improved functionality of the Platform, the Service or the Company Materials (collectively “Improvements”) suggested or created by either Party, alone or jointly with others, in connection with the Agreement, without any obligation to obtain Client’s consent or pay any compensation, provided such Improvements do not contain Client Data or Client Confidential Information.
- Client Data; Consent to Use. As between Client and Company, Client is and will remain the sole and exclusive owner of all right, title, and interest in and to all Client Systems and Client Data, including all Intellectual Property Rights relating thereto, provided that Client hereby grants to Company the right to use Client Data pursuant to the Client Data License for the purposes set forth herein. Without limiting the generality of Section 13, Company shall treat Client Data (excluding the Resultant Data) as Client’s Confidential Information.
- Client Identification Materials; Consent to Use. Notwithstanding anything to the contrary contained herein, Client hereby grants to Company the right to use the name, logos, trademarks, service marks, trade names, and domain names (collectively, “Identification Materials”) of Client (and any Customer of Client) in connection with the creation, implementation, and distribution of Digital Offers subject hereto. All such Identification Materials shall be subject to Client’s approval, except for Identification Materials furnished by Client, which shall be deemed approved by Client.
- Company Data License. Subject to the terms and conditions of the Agreement, if and to the extent Company makes Company Data available to Client, then Company hereby grants to Client a limited, worldwide, non-exclusive, non-transferable (except as set forth in these T&Cs), non-sublicensable (except as set forth in these T&Cs), royalty-free license (the “Company Data License”) to use such Company Data during the Term solely for Client’s internal business purposes in connection with its use of the Service. For the avoidance of doubt, Client acknowledges and agrees that Company Data includes, without limitation, information collected by or on behalf of Company from Unique Users as part of or in connection with Company’s provision of the Service, including, without limitation, any personal information collected by or on behalf of Company from Unique Users for legal or contractual compliance purposes.
- Client Data License. Subject to the terms and conditions of the Agreement, Client grants Company a limited, worldwide, non-exclusive, royalty-free license (the “Client Data License”) to receive, store, Process, modify, display, and otherwise use Client Data for the purpose of providing the Service to Client during the Term, to enforce the Agreement, and to exercise Company’s rights and perform Company’s obligations thereunder. For the avoidance of doubt, the Client Data License includes the right for Company to create Resultant Data, and to derive performance data, test or evaluation results, or other metrics from the Platform or otherwise as the result of Company’s provision of the Service to Client hereunder.
- Reservation of Rights. Nothing in the Agreement grants any right, title, or interest in or to any Intellectual Property Rights in or relating to the Service, the Platform, or any other Company Materials or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Service, the Platform, and all other Company Materials, and the Third-Party Materials are and will remain with Company (and the respective rights holders in the Third-Party Materials).
- Data Backup; Data Privacy and Security:
- Data Backup.
- While the Platform is programmed to perform routine data backups, the Platform does not and is not intended to replace the need for Client to maintain regular data backups or redundant data archives. In the event of any loss, destruction, damage, or corruption of Client Data caused by access to and use of the Service, Company will, as its sole obligation and liability, and as Client’s sole remedy, use commercially reasonable efforts to restore the Client Data from Company’s then most current backup of such Client Data.
- Client acknowledges and agrees that storage of Client Materials on the Platform will be subject to Company’s or its hosting provider’s storage limits, and that long term data storage is and will be deemed a premium service subject to additional fees.
- Data Backup.
- Personal Information Protection. Under the Agreement, each Party may obtain certain Personal Information (and Sensitive Personal Information, if applicable). The Parties’ obligations regarding such Personal Information (and Sensitive Personal Information, if applicable) shall be governed by the Personal Information Processing Addendum (the “PIPA”) (found here: https://skux.io/personal-information-protection/).
- Company Security. With respect to securing Client Data, Company shall: (a) implement and maintain a written data privacy and information security program including policies, procedures, and risk assessments consistent with industry standards (the current form of which is found here: https://skux.io/information-security-policy/) that are reviewed at least annually (the “Information Security Policy”); and (b) at all times during the Term, implement administrative, physical, and technical safeguards tailored consistent with industry standards to protect Client Data from unauthorized access, acquisition, or disclosure, destruction, alteration, accidental loss, misuse. However, Company will have no responsibility for errors in transmission, unauthorized third-party access, or other causes beyond Company’s control, so long as Company has complied with its Information Security Policy and the obligations under this Section 5.3.
- Client Control and Responsibility. Client shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards reasonably necessary to: (i) prevent unauthorized access to or use of the Service, the Platform and any other Company Materials, and will notify us promptly of any such unauthorized access or use; (ii) securely administer the distribution and use of all Access Credentials and Client Materials and protect against any unauthorized access to or use of the Service, the Platform, any other Company Materials, Access Credentials, and Client Materials; and (iii) control the content and use of Client Materials, including, without limitation, the uploading or other provision of Client Data for Processing through the Platform.
- Compliance with Law: Both Client and Company shall comply with any and all applicable Laws in connection with their respective performance under the Agreement, including obtaining any proper consents or providing any privacy notices as required by applicable Law.
- Non-Solicitation and Non-Circumvention:
- Non-Solicitation. During the Term and for one year thereafter, neither Client nor any Person owned or controlled by Client shall, and neither Client nor any such Person shall assist any other Person to, directly or indirectly, recruit or solicit for employment or engagement any Company Personnel, or otherwise impede or interfere in any way with any relationship of Company with Company Personnel.
- Non-Circumvention. During the Term, Client shall not, directly or indirectly, pursue or engage in any transaction, or enter into any agreement with, any third-party that could or would interfere with, circumvent, attempt to circumvent, avoid or bypass Company’s business arrangement or relationship with such third party, including, but not limited to, the use by such third party of the Service.
- Limited Service Warranty; Disclaimer:
- Subject to the terms and conditions of the Agreement, Company warrants that it will: (i) use commercially reasonable efforts consistent with prevailing industry standards to perform and maintain the Platform in a manner which minimizes errors and interruptions in the Platform; and (ii) perform Professional Services (if any) in a professional and workmanlike manner. In the event of a breach by Company of any of the foregoing, Client’s sole remedy will be for Company to use commercially reasonable efforts to reperform the applicable services at no additional cost to Client and, in the absence of compliant reperformance, to exercise its termination rights hereunder.
- You acknowledge that the Service, the Platform and other Company Materials may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by us or by third-party providers, or because of other causes beyond our reasonable control. We will use commercially reasonable efforts to provide advance notice by e-mail of any scheduled service disruption and to reinstate the Service, the Platform or any other Company Materials (as applicable). HOWEVER, WE DO NOT WARRANT THAT ACCESS TO THE SERVICE, THE PLATFORM OR ANY OTHER COMPANY MATERIALS WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO WE MAKE ANY WARRANTY THAT THE SERVICE, THE PLATFORM, ANY OTHER COMPANY MATERIALS OR ANY PROFESSIONAL SERVICES WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS, INCLUDING THOSE OF ANY CUSTOMER, ANY OTHER AUTHORIZED USER OR ANY UNIQUE USER, ACHIEVE ANY PARTIUCLAR RESULT, INCLUDING YOUR COMPLIANCE WITH ANY APPLICABLE LAWS, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8, THE SERVICE, THE PLATFORM, ALL OTHER COMPANY MATERIALS AND ALL PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND WE EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS IMPLIED, STATUTORY OR OTHER, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE WITH RESPECT TO THE SAME. ALL THIRD-PARTY MATERIALS INCLUDED IN ANY OF THE FOREGOING ARE PROVIDED “AS IS” AND SUBJECT TO ANY APPLICABLE THIRD-PARTY REQUIREMENTS. ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN YOU AND THE THIRD-PARTY MATERIALS PROVIDER.
- Representations and Warranties; Indemnification:
9.1 Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (a) it is duly organized, validly existing, and in good standing as a corporation, limited liability, or other entity under the Laws of the jurisdiction of its incorporation or other organization; (b) it has the full corporate right, power, and authority to enter into and perform its obligations and grant the rights, licenses and authorizations it grants or is required to grant under the Agreement; (c) the execution of the Agreement (including each SOW) has been and will be duly authorized by all necessary corporate or organizational action of such Party; (d) it is an independent contractor for purposes of federal, state, and local taxes, and accordingly, neither Party is responsible to collect or withhold any such taxes, including income tax withholding and social security contributions, for the other Party; and (e) when executed and delivered by both Parties, the Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
9.3 Additional Client Representations and Warranties. Client represents, warrants and covenants that: (a) neither the Client Systems nor any Client Materials or submission of the same to Company hereunder constitute a misappropriation of any Intellectual Property Right of any third party or any violation of applicable Law; (b) Client has obtained written authorization from all Customers to enter into and perform Client’s obligations and grant the rights, licenses, consents (including consent to Process Personal Information, where applicable), and authorizations it grants or is required to grant under the Agreement with respect to such Customers; (c) Client has the right to grant the Client Data License to Company; (d) Company’s exercise of the Client Data License will not infringe on any Intellectual Property Rights of any third party, including but not limited to copyright, trademark, trade secret, patent, unfair competition, contract, defamation, privacy, or publicity rights; and (e) the grant of the Client Data License to Company as well as the possession, use, and display of the Client Data by Company as part of the Service, as well as the access of such Client Data by Authorized Users and Unique Users, complies with all applicable Laws; (f) no payments (other than as expressly provided in the applicable SOW shall be due by Company in connection with the grant of the Client Data License and other rights granted by Client hereunder; (g) Client shall manage and implement each applicable Campaign so that each individual consumer end user provided by Client or its Customers through the Platform shall be a Unique User that is eligible and qualified to participate in Campaigns subject to the Agreement; (h) neither Client nor, to the best of Client’s knowledge, any Authorized User is (y) identified on any sanctions or export control list maintained by the U.S. government, including, but not limited to, the Specially Designated Nationals (“SDN”) List maintained by the Department of the Treasury or OFAC; or (z) located, organized or ordinarily resident in a country or territory that is subject to sanctions or embargoes of any kind by the United States of America; and (i) Client will not engage in any activity or transaction pursuant to the Agreement that would be in violation of any U.S. export or economic sanctions law or regulation. Client acknowledges that applicable Laws change from time to time, and that as a result Company may (but need not) periodically require Client to provide
updated confirmation of its compliance with all applicable Laws as a condition of Company’s ability to continue to provide you with the Service.
9.4 Client Indemnification. Client shall indemnify, defend, and hold harmless Company and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (the “Company Indemnitees“) from and against any and all Losses incurred by any such Company Indemnitee resulting from any Action by a third party (other than an Affiliate of a Company Indemnitee) that arises out of or results from, or are alleged to arise out of or result from: (a) Client Materials, except to the extent that such Action is attributable to Company’s unauthorized or unlawful access, modification, or use of Client Data hereunder; (b) Company’s compliance with any Specifications or directions provided by or on behalf of Client or any Authorized User; (c) Client’s material breach of any of its representations, warranties, covenants, or obligations under the Agreement; or (d) gross negligence or more culpable act or omission (including recklessness or willful misconduct) by Client, any Authorized User, or any third-party on behalf of Client or any Authorized User, in connection with the Agreement.
9.5 Company Indemnification. Company will indemnify, defend and hold harmless Client from any Action by a third-party (other than an Affiliate of a Client Indemnitee) brought against Client resulting from that arises out of or results from, or are alleged to arise out of or result from, an allegation that the Service, the Platform or any other Company Materials infringe or misappropriate the Intellectual Property Rights of a third party. The foregoing obligation does not apply to the extent the alleged infringement or misappropriation arises out of or relates to: (i) Client Materials or third party services or materials; (ii) modification of the Service, Platform or applicable Company Materials other than by us; (iii) access or use of the Service, Platform or applicable Company Materials in combination with any hardware, system, software, network, or other materials or service not provided by us; (iv) your or any of your Authorized Users failure to timely implement any modifications, upgrades, replacements, or enhancements made available to you or them (as applicable) by us or on our behalf and/or to make any related and recommended accommodations; or (v) any indemnifiable act, omission or other matter described in Section 9.4.
9.6 Mitigation. If the Service, the Platform or any other Company Materials, are, or in Company’s good faith business judgment likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Client’s or any Authorized User’s use of the Service, the Platform and/or any other Company Materials is enjoined or threatened to be enjoined, then Company may, at its option and sole cost and expense: (a) modify or replace the Service, the Platform or other Company Materials (as appliable), in whole or in part, to seek to make the same (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute the Service, the Platform, such other Company Materials, as applicable, under the Agreement; or (b) obtain for Client a right to continue using the Service, the Platform or such other Company Materials as materially contemplated by the Agreement; or (c) if neither of the foregoing is commercially practicable in Company’s sole discretion, by written notice to Client, terminate the applicable SOW and/or the Agreement in its entirety, and require Client to immediately cease any use of the Service, the Platform or such other Company Materials or any specified part or feature thereof, provided that in the event of such termination, the provisions of Section 12.4(a) of these T&Cs regarding the refund to Client of any Deposit Balance shall apply.
9.7 Defense. The Party seeking indemnification (the “Indemnitee”) shall promptly notify the other Party (the “Indemnitor”) in writing of any Action for which such Indemnitee believes it is entitled to be indemnified and shall cooperate with the Indemnitor at the Indemnitor’s sole cost and expense. The Indemnitor shall promptly assume control of the defense and shall employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action without the Indemnitee’s prior written consent (which shall not be unreasonably withheld or delayed) unless such settlement unconditionally releases the Indemnitee of all liability and does not admit any liability or create any affirmative obligation or require any contribution from any Indemnitee, in which case, no such consent will be required.
9.8 Sole Remedy. THIS SECTION 9 SETS FORTH CLIENT’S SOLE REMEDIES AND COMPANY’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICE, ANY COMPANY MATERIALS (INCLUDING PLATFORM AND ANY COMPONENT THEREOF) OR ANY SUBJECT MATTER OF THE AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD-PARTY.
9.9 Insurance. Each Party shall maintain at its own expense insurance (including, without limitation, commercial general liability and cyber liability insurance) as is legally required and appropriate in respect of its obligations, including such Party’s indemnification obligations, hereunder. Each Party shall provide reasonable evidence, in the form of a certificate of insurance, that such insurance is in effect upon request of the other Party. Each Party shall promptly notify the other Party as to any renewal or substitution of such insurance.
- Limitations Of Liability; Mutual Waiver of Class Action Participation:
- IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD-PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS PROFITS OR GOODWILL OR FOR BUSINESS INTERRUPTION) ARISING OUT OF OR RELATED TO THE AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION AND EVEN IF A REPRESENTATIVE OF THE PARTY ALLEGEDLY LIABLE WAS ADVISED, HAD REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL COMPANY’S LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THE AGREEMENT (WHETHER ALONE OR IN THE AGGREGATE WITH OTHER CLAIMS) EXCEED THE LESSER OF (a) THE FEES PAID TO COMPANY BY CLIENT HEREUNDER, OR (b) TEN THOUSAND ($10,000) DOLLARS, IN EACH CASE, REGARDLESS OF WHETHER DUE TO NEGLIGENCE, FAULT OR DEFAULT. THE LIMITATIONS SET FORTH ABOVE SHALL BE DEEMED TO APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES. EACH PARTY ACKNOWLEDGES AND AGREES THAT IT HAS FULLY CONSIDERED THE FOREGOING ALLOCATION OF RISK AND FINDS IT REASONABLE, AND THAT THE FOREGOING LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
- Neither we nor you may be a representative of other potential claimants or a class of potential claimants in any dispute concerning or relating to the Agreement, nor may two or more individuals’ disputes be consolidated or otherwise determined in one proceeding. WE AND YOU ACKNOWLEDGE THAT THIS SECTION WAIVES ANY RIGHT TO PARTICIPATION AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLASS ACTION.
- Assignment: Except as set forth in the Agreement, neither Party may assign the Agreement or any of its rights and obligations under the Agreement, without the prior written consent of the other Party; provided, however no such consent shall be required in the event of an assignment by a Party to a successor of such Party resulting from a merger, reorganization or sale of substantially all of such Party’s assets or equity interests. Any purported assignment, delegation, or transfer in violation of this Section 11 is void ab initio. The Agreement shall inure to the benefit of and be binding upon the Parties and any successors or permitted assigns.
- Term and Termination:
12.1 The initial term of the Agreement (“Initial Term”) and each renewal term of the Agreement (“Renewal Term”) shall be as set forth in the Usage Agreement. The term of each SOW will commence on the Campaign Start Date and the Campaign End Date, each as specified in the applicable SOW. Termination of the Usage Agreement for any reason will cause automatic termination of each SOW in effect at the time of the Agreement’s termination. Termination of a SOW will not affect any other SOWs in effect at the time of the terminated SOW’s termination.
12.2 In addition to any other express termination right set forth elsewhere in the Agreement, Company may terminate a SOW (including any Campaign) and/or the Agreement, effective on written notice to Client, if Client fails to pay any Fees or other payments when due hereunder (including any failure to replenish the Deposit Account with the Required Minimum Deposit) and such failure continues more than ten days after Company’s delivery of written notice thereof. Additionally, either Party may terminate a SOW and/or the Agreement, effective on written notice to the other Party, if (a) the other Party materially breaches the Agreement and such breach (i) is incapable of cure (it being acknowledged that, without limiting the generality of subsection (i), Client’s breach of Section 2 or Section 13 constitutes a material breach that is incapable of cure), (ii) being capable of cure, remains uncured for thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; and (b)such other Party (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due, (ii) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law, (iii) makes or seeks to make a general assignment for the benefit of its creditors, (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
12.3 Upon any expiration or termination of the Agreement, except as expressly otherwise provided herein: (a) all rights, licenses, consents, and authorizations granted by either Party to the other hereunder will immediately terminate; (b) Company shall promptly permanently erase all Client Data and Client’s Confidential Information from all systems controlled by Company, provided that, Company may retain copies of Client Data and/or Confidential Information as required by applicable law or Company’s document retention policies, in which case Company will continue to be bound by the terms and conditions of this Agreement with respect to such retained Client Data and/or Confidential Information; and further provided that, for clarity, Company’s obligations under this Section 12.3(b) do not apply to any Resultant Data; (c) Client shall immediately cease all use of the Service and all Company Materials (including the Platform) and permanently erase Company’s Confidential Information from all systems directly or indirectly controlled by Client; and (d) Company may disable all Client and Authorized User access to the Service and all Company Materials.
12.4 Without limiting the generality of Section 12.3: (a) upon any expiration or termination of a SOW other than as a result of Client’s failure to pay or other breach pursuant to Section 12.2 of these T&Cs, Company will refund to Client any Deposit Balance within thirty (30) days following the effective termination date; and (b) upon termination of the SOW by Company as a result of Client’s failure to pay or other breach pursuant to Section 12.2 of these T&Cs, (i) all Fees that would have become payable had the Agreement remained in effect until expiration of the then-current Term, as the case may be, will become immediately due and payable, and Client shall pay such Fees, together with all previously-accrued but not yet paid Fees, on receipt of Company’s invoice therefore, and (ii) Company will retain any Deposit Balance for its own use and benefit. Client acknowledges and agrees that such fees are reasonable and necessary to protect Company’s business interests.
12.5 The provisions set forth in the following Sections, and any other right or obligation of the Parties in the Agreement that, by its nature, should survive termination or expiration of the Agreement, will survive any expiration or termination of the Agreement: Sections 1.7, 2, 3.4, 7, 8.2, 9.4, 9.5, 9.7, 9.8, 10, 13, and 15 – 17 (inclusive) of these T&Cs.
- Confidentiality:
13.1 Confidential Information. In connection with the Agreement each Party (as the “Disclosing Party“) may disclose or make available Confidential Information to the other Party (as the “Receiving Party“). Subject to Section 13.2 of these T&Cs, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Without limiting the foregoing, the Service, the Platform, and all other Company Materials, are the Confidential Information of Company without any marking or further designation.
13.2 Exclusions. Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with the Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with the Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party, including Unique Users; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
13.3 Protection. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party agrees: (a) to limit disclosure of the Disclosing Party’s Confidential Information to those Representatives of the Receiving Party who need to know such Confidential Information for purposes of the Agreement and who are bound by confidentiality (including nonuse and nondisclosure) obligations that are at least as restrictive as those set forth in these T&Cs; (b) not to disclose any such Confidential Information to any third party, without the Disclosing Party’s prior written consent; (c) to use the Disclosing Party’s Confidential Information solely and exclusively in accordance with the terms of the Agreement in order to carry out its obligations and exercise its rights under the Agreement; and (d) to afford the Disclosing Party’s Confidential Information at least the same level of protection against unauthorized disclosure or use as the Receiving Party normally uses to protect its own information of a similar character, but in no event less than reasonable care.
13.4 Legally Required Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (i) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under this Section 13; (ii) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure; and (iii) disclose only the limited portion that requires disclosure.
- Audit: Company shall have the right to periodically monitor and audit Client’s use of the Service and any Company Materials (including the Platform) during the Term and after the expiration or earlier termination of the Term for a period of one year. Client shall make available all such books, records, equipment, information, and personnel, and provide all such cooperation and assistance, as may be reasonably requested by or on behalf of Company with respect to such audit. Company shall only examine information reasonably related to Client’s use of the Service and the Company Materials hereunder. If the audit determines that Client’s use of the Service or any Company Materials violated any provision of the Agreement, in addition to any remedy available to Company at law or equity, Client shall pay to Company (i) any amounts due for any overuse, plus interest on such amounts at the rate set forth in Section 3.1.3 of these T&Cs, and (ii) all actual costs incurred by Company in conducting such audit within five (5) days of the date of written notification of the audit results.
- Miscellaneous:
15.1 Independent Contractor. The relationship between the Parties is that of independent contractors. Accordingly, neither Party shall, nor shall any officer, director, employee, servant, agent or independent contractor of either Party (i) be deemed an employee of the other Party, (ii) commit the other Party to any obligation, or (iii) hold itself, himself, or herself out as an employee of the other Party or a Person with the authority to commit the other Party to any obligation.
15.2 No Third-Party Beneficiaries. The Agreement is entered solely by and between the Parties and shall not be deemed to create any rights in or obligations to any third parties (including, without limitation, any Customer or Unique User). A Person who is not a Party to the Agreement (including, without limitation, any Customer or Unique User) shall have no rights to enforce any of the terms of the Agreement.
15.3 Amendment and Modification; Waiver. The Agreement and the rights and obligations hereunder may not be, in whole or part, amended, modified, or waived except in a writing that identifies itself as an amendment or waiver (as applicable) and that it signed by authorized representatives of both Parties. The failure of a Party to assert any of its rights under the Agreement, including the right to demand strict performance, shall not constitute a waiver of such rights, nor shall a waiver in any one instance of any provision be construed as a waiver with respect to any succeeding instance in which the same provision may apply.
15.4 Force Majeure. Except for Client’s obligations to pay Fees due hereunder, neither Party shall be liable for failure to fulfill its obligations under the Agreement if that failure is caused, directly or indirectly, by flood, extreme weather, fire, mud slide, earthquake, or other natural calamity or act of God, epidemic or pandemic, interruption in water, electricity, rights, civil disorders, rebellions or revolutions, disease, acts of governmental agencies, quarantines, embargoes, malicious acts of third parties, acts of terrorism, labor disputes affecting vendors or subcontractors and for which the Party claiming force majeure is not responsible, or any other similar cause beyond the reasonable control of that Party (a “Force Majeure Event”) Such obligations shall be suspended during such Force Majeure Event and the failure to fulfill such obligations under the Agreement shall not be deemed a breach of the Agreement. In the event the delay or failure shall continue for a period of fifteen (15) consecutive days, then either Party shall have the right to terminate the Agreement.
15.5 Consent to Jurisdiction and Venue; Governing Law. The Agreement is governed by and shall be construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Florida. Any legal suit, action, or proceeding arising out of or related to the Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Florida in each case located in the city of Tampa and County of County of Hillsborough, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such Party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court. The Parties waive their right to a trial by jury.
15.6 Notices. All notices, demands, requests or other communications which may be or are required to be given, served, or sent by a Party to the other Party pursuant to the Agreement will be in writing and will be delivered electronically to the email addresses set forth below. Either Party may change its email address for notice by notifying the other Party of such change in accordance with this Section.
If to you: to the email address set forth in the Usage Agreement.
If to us: to the email address set forth in the Usage Agreement, marked to the Attention of “Legal Notice,” and in all cases, with copy (but which will not constitute notice) to legal-group@skux.io.
15.7 Severability. In the event that any provision of the Agreement shall be held to be invalid, illegal or unenforceable (collectively, “Invalid”), the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The Parties agree to immediately negotiate in good faith a replacement for any such Invalid provision in order to preserve the interests of the Parties, to the extent permitted by Law. In the event a material term is so held Invalid, either Party shall also have the right to terminate the Agreement upon written notice to the other Party.
15.8 Publicity. Neither Party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to the Agreement or, unless expressly permitted under the Agreement, otherwise use the other Party’s Identification Materials, in each case, without the prior written consent of the other Party, which consent shall not be unreasonably withheld, provided, however, that Company may, include Client’s name and other indicia (including Client’s logo) in its lists of Company’s current or former clients in promotional and marketing materials (including its website) without Client’s consent, and may publicize and present Client’s name and other indicia (including Client’s logo) and selected use case results in its promotional and marketing materials (including its website), which may include but is not limited to press releases, case studies and other presentations, subject to Client’s approval of logo use, artwork and copy of press releases, which approval shall not be unreasonably withheld. Client further acknowledges and agrees that, with respect to Client’s access to and use of the Service, all Digital Offers (including all Content), and all marketing and other materials used either Party in connection with Campaigns hereunder, shall include the Company Logo in a “powered by” or similar format.
15.9 Entire Agreement. The Agreement (including the Usage Agreement, each SOW, and these T&Cs and all documents incorporated herein or therein by reference), represents the full and entire understanding and agreement between the Parties with regard to the subject matter hereof and supersedes all prior agreements (whether written or oral) of the Parties relating to the subject matter of the Agreement. The Usage Agreement and each SOW may be executed in counterparts, each of which will be an original, but all of which together will constitute one and the same instrument. Confirmation of execution by electronic transmission signature page or other electronic execution means will be binding, and each Party irrevocably waives any objection that it has or may have in the future as to the validity of any such electronic execution.
- Pilot Programs. In the event that we provide you with the Service and/or access to the Platform pursuant to a Pilot Program, you acknowledge and agree that, notwithstanding anything to the contrary in the Agreement, the Service and the Platform under such circumstances are offered to you for evaluation or other related purposes and, therefore, may contain bugs or errors, and will be subject to different and/or additional terms. Without limiting the generality of the foregoing, in the context of a Pilot Program, our entire liability to you, and your sole remedy in connection with any Pilot Program (including, without limitation, any defects or non-performance of the Service and/or the Platform during the same) is for you to terminate your participation in the Pilot Program (and thus, stop using the Service and the Platform). WITHOUT LIMITING THE APPLICATION OF ANY OTHER LIMITATIONS OF LIABILITY APPLICABLE TO YOUR USE OF THE SERVICE, THE PLATFORM OR ANY PROFESSIONAL SERVICES PROVIDED BY US HEREUNDER, IN NO EVENT WILL LL THE COLLECTIVE AGGREGATE LIABILITY OF OURS AND OUR LICENSORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH ANY PILOT PROGRAM, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED $100.00. THE FOREGOING LIMITATION APPLIES EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Certain Defined Terms:
“Access Credentials” means any username, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device, used alone or in combination, to verify an individual’s identity and authorization to access and use the Platform and/or the Service.
“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
“Affiliate” means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.
“Agreement” has the meaning set forth in the preamble and which, for clarity, includes the Usage Agreement, each SOW and these T&Cs, including any documents incorporated herein by reference.
“Authorized Users” means Client’s employees, consultants, contractors, and agents (a) who are authorized by Client to access and use the Service under the rights granted to Client pursuant to the Agreement; and (b) for whom access to the Service has been provided hereunder. To the extent that any Customer of Client is provided access to the Platform and the Service, such Customer shall be deemed to be an Authorized User hereunder, subject to the terms and conditions of the Agreement. Client shall be responsible and liable for any act or omission by any Authorized User, its representatives, and any other persons accessing the Service and/or the Platform directly or indirectly through Client, its Authorized Users or its or their respective representatives) that would constitute a breach of the Agreement as if such act or omission was the act or omission of itself or its representatives (authorized or unauthorized).
“Campaign” means a specific, defined set of activities whereby Client markets and promotes Digital Offers as specified in a SOW.
“Claim” and “Claimed” means a Unique User’s initiation of any action that facilitates the Redemption of a Digital Offer, including clicking a link on Company’s landing page in order to: (i) receive a Payment Code: (ii) transfer a Digital Offer to a digital wallet or other means of storage; or (iii) register on a third-party platform to Redeem a virtual debit or gift card or other Digital Offer. For purposes of the payment of Fees to Company, a Claim shall be deemed to have occurred when a Unique User takes any action that enables them to Redeem a Digital Offer, regardless of whether or not the Digital Offer is ever actually Redeemed.
“Claimed Digital Offer” means each Digital Offer Claimed by a Unique User prior to the Campaign Termination Date of a particular Campaign.
“Client Data” means any and all information, data, works, expressions or other Content, in any form or medium, that is: (a) uploaded, submitted, posted, transferred, transmitted, or otherwise provided or made available by Client or its Customers for Processing by or through the Platform; or (b) collected, downloaded, or otherwise received from Client or its Customers in connection with the Service. Except as set forth in the immediately following sentence, all output, copies, reproductions, improvements, modifications, adaptations, translations, and other derivative works of, based on, derived from, or otherwise using any Client Data are themselves also Client Data. For the avoidance of doubt, Client Data includes all Client Confidential Information, and Personal Information provided by Client or its Customers, but does not include any Company Materials (including Company Data, or Resultant Data) even if the Company Materials may otherwise be considered Client Data.
“Client Systems” means the Client’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Client or through the use of third-party services.
“Company Data” means (1) any and all information (including Personal Information), data, works, expressions or other Content, in any form or medium, that is: (a) uploaded, submitted, posted, transferred, transmitted, or otherwise provided or made available, directly or indirectly, by Unique Users for Processing by or through the Platform; or (b) collected, downloaded, or otherwise stored by or through the Platform (other than Client Data); and (2) any and all performance data, test or evaluation results, or other metrics derived from the Platform or otherwise as the result of Company’s provision of the Service to Client hereunder. All output, copies, reproductions, improvements, modifications, adaptations, translations, and other derivative works of, based on, derived from, or otherwise using any Company Data are themselves also Company Data.
“Company Logo” means, collectively, any or all of the Company logos, including the logo appearing at the top of these T&Cs.
“Company Materials” means the Platform (including all underlying Software, code, modules, tools and other technology), Specifications, Documentation, Company Logo, name, brand and other similar intellectual property, Results, and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Company or any Subcontractor in connection with the Service or otherwise comprise or relate to the Service, the Platform, Professional Services or any of the foregoing. For purposes of clarity, Company Materials include Company Data and Resultant Data, and any information (including Personal Information), data, or other Content derived from Company’s monitoring of Client’s access to or use of the Service.
“Company Personnel” means all individuals involved in the maintenance, operation and provision of the Platform and the Service as employees, agents, or independent contractors of Company or any Subcontractor.
“Content” means information, data, text, photographs, videos, audio clips, written posts and comments, software, scripts, graphics, and/or interactive features.
“Customer” means a Person with whom Client has a contractual and/or business relationship pursuant to which Client is authorized (as such Person’s marketing agent, project manager, or otherwise) to market and distribute Digital Offers provided by the Customer though use of the Service to Unique Users in accordance with the terms and conditions of the Agreement. Each Customer selected by Client to either (i) benefit from Client’s access to and use of the Platform and the Service hereunder, or (ii) access and use, directly or indirectly, the Service, shall be designated as a Customer in a SOW and subject to prior, express written approval by Company.
“Deposit Account” means a designated account established by Company, kept separate from Company’s operating account.
“Deposit Balance” means an amount, if any, equal to the funds remaining in the Deposit Account after Company has deducted fees and costs attributable to the applicable SOW.
“Digital Offer” means a purchase incentive, financial offset or prepaid sum that is distributed digitally through the Platform to Unique Users via text message, email or virtual payment rail (e.g., Mastercard, Visa, etc.), and which can be Redeemed by such Unique Users with desktop or mobile devices at various online and physical Redemption Locations. Client may distribute Digital Offers solely to Unique Users and solely in a form and by means acceptable to Company.
“Documentation” means any manuals, instructions, or other documents or materials that Company provides or makes available to Client in any form or medium and which describe the functionality, components, features, or requirements of the Platform and the Service, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
“Fees” means any amounts payable by Client to Company under the Agreement, including, without limitation, setup fees, subscription fees (including any initial and/or recurring Fees), and Campaign fees, in each case, as set forth in the Usage Agreement and each applicable SOW.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world. Without limiting the generality of the foregoing, Company’s Intellectual Property Rights shall include, without limitation, the Company Logo and the trademark “Smart Incentives™”.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
“Losses” means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Payment Code” means a quick response (“QR”) code, bar code, or other form of digital code that can be scanned, tapped, or entered only once by Unique Users online or through mobile devices.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
“Personal Information” means any information that: (a) identifies or can be used to identify an individual (including, for example, names, signatures, addresses, telephone numbers, email addresses, and other unique identifiers); or (b) can be used to authenticate an individual (including, without limitation, employee identification numbers, government-issued identification numbers, passwords or PINs, user identification and account access credentials or passwords, financial account numbers, credit report information, student information, biometric, genetic, health, or health insurance data, answers to security questions, and other personal identifiers), in case of both subclauses (a) and (b), including, without limitation, Sensitive Personal Information as defined herein. Client’s business contact information is not by itself Personal Information.
“Pilot Program” means a Campaign or series of Campaigns of limited duration whereby Company has granted Client and/or a Customer the right to access and use the Service and the Platform for the purpose of enabling Client and/or such Customer to evaluate and test the Service and the Platform in order to determine whether or not to enter into a further business relationship with Company. All such Pilot Programs shall be subject to the terms and conditions of the Agreement and shall be described in full detail on a separate and distinct SOW.
“Platform” means Company’s proprietary Smart Incentives™ end-to-end technology Platform through which Company makes the Service available to clients (including the Client) and their Authorized Users.
“Process” means to take any action or perform any operation or set of operations that the Service is capable of taking or performing on any data, information, or other Content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy. “Processing” and “Processed” have correlative meanings.
“Professional Services” means professional services provided by Company to Client in connection with Client’s access and/or use of the Service, such as, without limitation, implementation (which includes onboarding and configuration), integration, customization, and/or support services, in each case, as expressly described in the applicable SOW or as otherwise mutually agreed to by you and us in writing, including in certain cases a mutually executed statement of work.
“Redemption”, “Redeem” and “Redeemed” means a Unique User’s actual exchange of a Digital Offer for goods or services.
“Redeemed Digital Offer” means each Digital Offer actually Redeemed by a Unique User prior to the Campaign Termination Date of a particular Campaign.
“Redemption Location” means any retailer, website, or other location at which Unique Users may Redeem Digital Offers in order to obtain physical products and/or other items of value.
“Representatives” means, with respect to a Party, that Party’s employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors, accountants, and legal advisors.
“Resultant Data” means Client Data that has been aggregated, de-identified and anonymized.
“Results” means any work product, including any software, applications, inventions or other technology or intellectual property developed, authored and/or reduced to practice in connection with any Professional Services.
“Sensitive Personal Information” means an individual’s (i) government-issued identification number, including Social Security number, driver’s license number, or state-issued identification number; (ii) financial account number, credit report information, or credit, debit, or other payment cardholder information, with or without any required security or access code, personal identification number, or password that permits access to the individual’s financial account; or (iii) biometric, genetic, health, or health insurance data.
“Service” means the platform as a service (“PaaS”) provided by Company that facilitates Client’s generation and distribution of Digital Offers to Unique Users (often utilizing “one-time-use” Payment Codes) for Redemption at the Redemption Locations identified in the applicable SOW.
“Software” means Company’s proprietary code (in all forms), libraries, protocols, formats, documentation, modules, plugins, Application Programming Interfaces (“APIs”), and Software Development Kits (“SDKs”), as each may be updated from time to time by Company.
“SOW” has the meaning set forth in the recitals to these T&Cs. Each SOW shall set forth the business terms and requirements governing a particular Campaign, including, without limitation, as applicable, a description of the Campaign (e.g., name, length, and URL access and connection methods and locations), pricing, and any Payment Code or Redemption Location restrictions. A SOW is not effective hereunder unless signed by an authorized representative of each Party and may only be amended or modified in writing pursuant to a Change Order executed by an authorized representative of each Party in accordance with Section 1.8 of these T&Cs.
“Specifications” means the specifications for the Service (if any) set forth in a SOW and/or in the applicable Documentation.
“Term” means the Initial Term and each Renewal Term (if any).
“Territory” means the geographic parameters defining where the Service shall be provided, which shall be the Universe unless otherwise mutually agreed upon by the Parties.
“Third-Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, Content, specifications, products, equipment, or components of or relating to the Platform and the Service that are not proprietary to Company.
“Unique User” means an individual consumer who may Redeem Digital Offers provided by Client or its Customers, in each case, who has a distinct IP address or additional further Personal Information identifiers that are used to identify the consumer as a unique, authorized user eligible to claim and/or redeem the digital offer.