ReFiProcity Customer Agreement
This ReFiProcity Customer Agreement (the “Agreement”) is made by and between ergo Offers, Inc., a Delaware corporation (d.b.a. ReFiProcity, the“Company”) and the company or other legally entity (the “Customer”)accessing or using ReFiProcity’s proprietary tools (the “Services”).This Agreement is effective as of the date Customer accepts this Agreement or first access or uses the Services, whichever is earlier.
1. Access and Use of Services.
a. Services Access. Subject to the terms and conditions of this Agreement, Company grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable right during the term of this Agreement to access and use the Services in accordance with the applicableDocumentation and only for Customer’s internal business purposes. For purposes of this Agreement, “Documentation” means any user manuals, written instructions, guidelines, policies and other protocols related to the Services that Company customarily provides to end users of the Services, including the published specifications for the Services on the date that this Agreement takes effect. Company may modify the Services and Documentation from time-to-time, and Company will use commercially reasonable efforts to notify Customer of any material modifications thereto.
b. Restrictions. Other than as expressly permitted herein or in the Documentation and except to the extent these restrictions are prohibited under applicable law, Customer will not, and will not permit any third-party to, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms underlying theServices; (b) modify, translate, copy or create derivative works based on theServices; (c) use the Services for time sharing or service bureau purposes or otherwise for the benefit of a third party; (d) use the Services to create or develop a competitive product or service; (e) attempt to gain unauthorized access to the Services or make the Services available to any third party; (f)send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs through theServices; (g) interfere with or disrupt the integrity or performance of theServices; (h) obscure, alter or remove any copyright, patent, trademark, service mark or proprietary rights notices or labels on the Services; (i) use the Services in violation of any applicable law or regulation or in violation of any person’s or entity’s rights; or (j) otherwise use the Services except as expressly permitted herein.
2. Customer Data and Licenses.
a. License by Customer to Company. Customer grants to Company and its affiliates and applicable contractors a worldwide, limited-term license to host, copy, use, transmit, and display any and all data and information submitted by Customer to the Services (“Customer Data”) as reasonably appropriate forCompany to provide, operate and maintain the Services and associated systems in accordance with this Agreement. If Customer chooses to use a Non-CompanyApplication (defined below) with the Services, Customer acknowledge and agree that Company may allow the Non-Company Application and its providers to access and use Customer Data and information about Customer’s usage of the Non-CompanyApplication. Company is not responsible for any access to or disclosure, modification or deletion of Customer Data resulting from access by any suchNon-Company Application. Subject to the limited licenses granted herein, Company acquires no right, title or interest from Customer or its licensors under this Agreement in or to any Customer Data.
b. Aggregated Data. Customer acknowledges and agrees that Company may monitor the performance and use of the Services by all of its users, combine this data with other data (including Customer Data) and use such metadata and other combined data in an aggregate and de-identified manner for any and all legitimate business purposes.
c. Customer Data Warranty. Customer represents and warrants that (i) it has obtained and will obtain and continue to have, during the term of this Agreement, all necessary rights, authority and licenses for the access to and use of the Customer Data as contemplated by this Agreement and (ii) Company’s use of the Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligations between Customer and any third party.
a. Non-Company Products and Services. Customer may use its own, or third parties may make available to Customer, certainWeb-based, mobile, offline or other software applications or functionality that interoperate with the Services (“Non-CompanyApplications”). Any acquisition by Customer of such Non-Company Applications and any exchange of data between Customer and any provider of such Non-Company Applications is solely between Customer and the applicable non-Company provider. Company does not warrant or supportNon-Company Applications or other non-Company products or services, whether or not they are designated by Company as interoperable with the Services or otherwise.
b. Integration with Non-Company Applications. The Services may contain features designed to interoperate with Non-Company Applications.Company cannot guarantee the continued availability of such features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example, the provider of a Non-Company Application ceases to make the Non-Company Application available for interoperation with the corresponding Services features in a manner acceptable to Company.
c. Removal of Non-Company Applications. If Customer receives notice that a Non-Company Application must be removed, modified and/or disabled to avoid violating applicable law or third-party rights, Customer will promptly do so. If Customer does not take required action in accordance with the above, or if in Company’s reasonable judgment continued violation is likely to reoccur, Company may disable the software integrated with such Non-CompanyApplication. If requested by Company, Customer shall confirm such deletion and discontinuance of use in writing and Company shall be authorized to provide a copy of such confirmation to any such third party claimant or governmental authority, as applicable.
4. Fees.
a. General. Customer shall pay Company all fees set forth in the applicable ordering document or page (the “Fees”). Except as expressly set forth herein, any Fees paid shall be non-refundable in any circumstances including upon early termination of thisAgreement. If Customer fails to make any payment in accordance with thisAgreement, Company shall (without prejudice to its other rights and remedies)be entitled to suspend Customer’s access to the Services until payment is made in full.
b. Taxes. The Fees do not include any sales taxes (“Taxes”). Customer is responsible for paying all Taxes, which for clarity do not include any taxes based on Company’s income. If Company has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.
a. Term of Agreement. This Agreement will have an initial term of one year, and will automatically renew thereafter for successive one-year periods unless either party gives the other party written notice of non-renewal at least 30 days prior to the expiration of the then-current term.
b. Termination. Either party may terminate thisAgreement for cause upon 30 days written notice to the other party of a material breach by such other party of this Agreement (including non-payment of any amounts due hereunder) if such breach remains uncured at the expiration of such period.
c. Effect of Termination; Survival. Upon termination or expiration of this Agreement, Customer shall cease all use of the Services. In no event will termination relieve Customer of its obligation to pay any fees payable toCompany for the period prior to the effective date of termination. The following provisions shall survive any expiration or termination of this Agreement: Sections 3, 5.c, 6, 7, 8.b, 9, 10, 12, and 13.
6. Company IP; Reservation of Rights. As between the parties, Company owns and shall retain all right, title and interest in and to (a) the Services and any name, trademark or service mark and associated goodwill, content, information, text, graphics, photos, resources, software, algorithms, APIs, technical information or other materials appearing or available in the Services, other than Customer Data, (b) the Documentation, (c) all updates, improvements, enhancements or modifications to the foregoing, and (d) all intellectual property rights in or to any of the foregoing [(a)-(d), collectively, (“Company Property”)]. All rights to the CompanyProperty not expressly granted under this Agreement are reserved by Company. From time to time Customer or its employees, contractors, or representatives may provide Company with suggestions, comments, feedback or the like with regard to the Services or any other Company products and services (collectively, “Feedback”). Customer hereby grants Company a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with Company’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the Services.
7. Confidentiality. Either party may receive (the “Recipient”) Confidential Information from the other party (the “Disclosing Party”) during the term of this Agreement. “Confidential Information” means all information of the Disclosing Party that should reasonably be understood to be confidential under the circumstances at the time of disclosure or that is marked as “Confidential” or an equivalent designation or, if delivered verbally, confirmed in writing to be confidential within 30 days of the initial disclosure. Company’s Confidential Information includes, without limitation, the Documentation and the terms of this Agreement. ConfidentialInformation does not include any information that: (a) is or becomes publicly known through no breach by Recipient; (b) was rightfully known to Recipient prior to disclosure by the Disclosing Party; (c) is received by Recipient from a third party that does not owe a duty of confidentiality with respect to such information to the Disclosing Party; or (d) is independently developed by Recipient without reference to or use of the Disclosing Party’s Confidential Information. Recipient shall not use Confidential Information of the Disclosing Party for any purpose other than to perform any obligations under this Agreement nor disclose such Confidential Information to any third party except as permitted hereunder. Recipient may disclose Confidential Information of the DisclosingParty only to those employees, contractors and agents who have a need to know such Confidential Information and who are bound to retain the confidentiality thereof under written obligations consistent with those set forth in thisAgreement. Recipient shall maintain the confidentiality of ConfidentialInformation of the Disclosing Party with at least the same degree of care it uses to protect its own confidential or proprietary information but no less than reasonable care. Upon the earlier of the Disclosing Party’s written request or termination of this Agreement, Recipient shall return or certify the destruction of all Confidential Information, provided, however, that the parties agree it will be infeasible for Recipient to return or destroy any data stored on encrypted back-up tapes in a secure location. Confidentiality obligations shall continue for five years from the expiration or termination of this Agreement for any Confidential Information retained, provided, however, that Recipient shall keep any trade secrets of the Disclosing Party confidential as long as such information is deemed a trade secret.Notwithstanding the foregoing, this Agreement shall not prevent Recipient from disclosing Confidential Information of the Disclosing Party to the extent compelled by law, a judicial order, or governmental authority, provided that,Recipient shall (x) promptly notify the Disclosing Party to allow intervention to contest or minimize the scope of the disclosure, (y) cooperate with theDisclosing Party in such efforts; and (z) limit the disclosure to the minimum amount that is legally required.
8. Limited Representations and Warranties and Disclaimers
a. Mutual Representations and Warranties. Each of Company and Customer represents and warrants to the other party that: (i) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement; (ii) it has the full power, authority, and right to perform its obligations and grant the rights it grants hereunder; (iii) this Agreement is the legal, valid and binding obligation of such party, enforceable in accordance with its terms; and(iv) in performing its obligations and exercising its rights under thisAgreement, it shall comply with all applicable federal and state laws and regulations.
b. DISCLAIMERS. COMPANY DOES NOT WARRANT THAT THE SERVICES PROVIDED UNDER THIS AGREEMENT, OR ANY OTHER MATERIALS OR DATA SUPPLIED BY COMPANY HEREUNDER, WILL PROVIDE PARTICULAR RESULTS,REVENUE, ENGAGEMENT OR OTHER BENEFITS TO CUSTOMER, THAT THE SERVICES WILL OPERATE IN THE COMBINATIONS WHICH CUSTOMER MAY SELECT FOR USE OR WITH ANYNON-COMPANY APPLICATIONS USED BY CUSTOMER, THAT THE OPERATION OF THE CUSTOMER SITE WILL BE UNINTERRUPTED, ERROR-FREE, OR OPERATE WITHOUT LOSS OR CORRUPTION OF DATA OR TECHNICAL MALFUNCTION, OR THAT ALL ERRORS WILL BE CORRECTED. NOTHING CONTAINED IN THE SERVICES CONSTITUTES, OR IS MEANT TO CONSTITUTE, FINANCIAL ADVICE OF ANY KIND. IF CUSTOMER REQUIRES ADVICE IN RELATION TO ANY FINANCIAL MATTER IT SHOULD CONSULT AN APPROPRIATE PROFESSIONAL. CUSTOMER ACKNOWLEDGES AND AGREE THAT COMPANY SHALL NOT BE RESPONSIBLE FOR ANY LOSS THAT CUSTOMER SUFFERS AS A RESULT OF ANY FINANCIAL TRANSACTION, REGARDLESS OF WHETHER OR NOT COMPANY ENTERS SUCH TRANSACTION BASED IN ANY WAY UPON THE SERVICES. OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,COMPANY MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, AND HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES IN CONNECTION WITH THIS AGREEMENT AND THE SERVICES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
THE FOREGOING DISCLAIMERS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
a. Indemnification by Company. Company shall defend Customer and its directors, officers, employees, agents, representatives, successors and permitted assigns(the “CustomerIndemnified Parties”)against all third party claims, demands, suits and proceedings (each, a “Claim”), and indemnify and hold the Customer Indemnified Parties harmless from and against any liabilities, losses, damages, costs and expenses, including reasonable attorneys’ fees (collectively, “Losses”) actually incurred by a Customer Indemnified Party in connection with or arising out of a Claim, alleging that the Services as properly used by Customer in accordance with the Documentation and thisAgreement infringes or misappropriates the intellectual property rights of such third party. Notwithstanding anything to the contrary herein, Company will not be obligated to defend or indemnify Customer for any Claims or Losses that arise from or relate to (a) Customer Data, (b) any portions or components of the Services not supplied by Company; (c) any portions or components of theServices that are modified or combined with other products, processes or materials not provided by Company, to the extent the infringement or misappropriation would not have occurred absent such modification or combination; or (d) where Customer continues the allegedly infringing activity after being notified thereof or after being notified of modifications or updated that would have avoided the alleged infringement.
b. Infringement Remedy. If Company believes that Customer is, or may become, prohibited from continued use of theServices by reason of an actual or anticipated infringement Claim, or ifCompany believes that infringement Claims or allegations of infringement may be made regarding the Services, then, at Company’s option, Company will use its commercially reasonable efforts to: (a) obtain for Customer the right to continue to use the Services as permitted hereunder, or (b) replace or modify the Services so that it is no longer subject to such infringement Claim but perform the same functions in a substantially equivalent manner. This Section 11.b, together with the indemnity provided under Section 11.a, shall by Customer’s sole and exclusive remedy and Company’s sole and entire liability for any Claim that the Services or any portion thereof infringes or misappropriates the intellectual property rights of a third party.
c. Indemnification by Customer. Customer shall defend Company and its affiliates and its and their its directors, officers, employees, agents, representatives, successors and permitted assigns (the “CompanyIndemnified Parties”) against any and all Claims and indemnify and hold theCompany Indemnified Parties harmless from and against any Losses incurred in connection with any Claim relating to (a) any Customer Data or Customer’s use of Customer Data with the Services, (b) interactions between Customer and its customers, (c) allegations that the combination of a Non-Company Application provided by Customer and used with the Services, infringes or misappropriates a third party’s intellectual property rights, or (d) Customer’s use of theServices in an unlawful manner or in violation of this Agreement or theDocumentation.
d. Indemnification Procedures. The party seeking indemnification (the “IndemnifiedParty”) shall (a) provide the other party (the “IndemnifyingParty”) with prompt written notice of the Claim giving rise to the indemnification obligation hereunder, but in no event later than 30 days after receiving notice of the Claim (provided that the failure to provide prompt notice will only relieve the Indemnifying Party of its obligations to the extent it is materially prejudiced by such failure); (b) reasonably cooperate with the Indemnifying Party in the defense of any such Claim at theIndemnifying Party’s cost; and (c) permit the Indemnifying Party to assume the defense of such Claim. The Indemnifying Party shall have the exclusive ability to defend or settle any such Claim; provided that an Indemnifying Party shall not enter into any settlement for damages, or that imposes upon the IndemnifiedParty any obligation or liability, without the Indemnified Party’s prior written consent, such consent not to be unreasonably withheld, delayed or conditioned.The Indemnified Party shall have the right to participate, at its own expense and with counsel of its choice, in the defense of any Claim or suit that has been assumed by the Indemnifying Party.
10. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR LIABILITY ARISING FROM COMPANY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (A) IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF COMPANY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO COMPANY FOR THE SERVICES HEREUNDER IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE, AND(B) IN NO EVENT WILL COMPANY HAVE ANY LIABILITY TO CUSTOMER OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT FOR ANY LOST PROFITS OR REVENUES OR INDIRECT,SPECIAL, INCIDENTAL, CONSEQUENTIAL DAMAGES. THE FOREGOING LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, AND EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS AND DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
11. Updating this Agreement. Company may modify this Agreement in its sole discretion from time to time upon reasonable advance written notice to Customer. If Customer does not agree to the modifiedAgreement, Customer may terminate its subscription to the Services upon written notice to Company and receive a pro rata refund covering the remainder of the term of the terminated subscription. Customer’s continued access or use of theServices after receipt of notice of such modifications will be deemedCustomer’s acceptance of the modified Agreement. Except as set forth in thisSection 13, this Agreement may not be modified except by a written agreement signed by both parties.
12. Miscellaneous. Company is not responsible for events beyond Company’s reasonable control, including acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes, epidemics, quarantine restrictions, or other labor-related problems, Internet or service provider failures or delays, denial of service attacks or a security breach of Customer’s or its third party providers’ systems, or any applications, systems, equipment, network or facilities not provided byCompany. If any provision of this Agreement is too broad to permit enforcement, such provision shall be enforced to the maximum extent permitted by law and may be judicially modified accordingly. If any provision of thisAgreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the terms herein will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. This Agreement shall be governed by the laws of the State of New York, without regard to its conflict of law’s provisions. If Company so request, in the event of any legal action relating to this Agreement shall be commenced in the state and federal courts having jurisdiction over disputes arising in New York, New York, and Customer hereby submits upon such request to the exclusive jurisdiction and venue of such courts. Except as set forth in Section 11, this Agreement is for the sole benefit of the parties hereto (and their successors and permitted assigns), and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit, or remedy. Customer may not assign this Agreement without the prior written consent of Company. Any assignment in breach of this Section 14shall be null and void from the beginning. Company may assign this Agreement without Customer’s consent. This Agreement shall not be construed as creating any agency, partnership, joint venture, or other form of association between the parties. The parties shall at all times remain independent contractors. The official language of this Agreement shall be English and any interpretation or construction of this Agreement shall be based solely on the English-language text. All headings to the clauses, sub-clauses and parts of this Agreement are inserted for convenience of reference only and are not intended to be part of or affect the meaning or interpretation of this Agreement. The parties agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in the construction or interpretation of this Agreement. As used in this Agreement, the words“include” and “including,” and variations thereof, will be deemed to be followed by the words “without limitation.”
13. Notices. All notices, including notices of address change, required to be sent hereunder shall be in writing and shall be sent to info@refiprocity.com. The notices shall be deemed to have been given upon the date the email is sent.