IMPORTANT: THESE TERMS AND CONDITIONS (SECTION 27) CONTAIN A MANDATORY AND BINDING ARBITRATION AGREEMENT AND CLASS ACTION/JURY TRIAL WAIVER. PLEASE READ THESE TERMS CAREFULLY AS THEY AFFECT YOUR RIGHTS IN THE EVENT OF A DISPUTE.
NOTICE: Load balancing activity is prohibited by the card schemes and banks and will lead to termination of Client merchant facilities if discovered.
TERMS AND CONDITIONS These Terms and Conditions supplement the Agreement (defined below) and govern use of the services to be used by Client for campaign management and reporting, including without limitation, technical support and development services provided under these Terms and Conditions, additional services that Client elects to receive by completing one or more exhibits to the Agreement, and the provision of associated materials and written documentation (collectively referred to as “Service(s)” or “sticky.io Service(s)”). The term “Agreement” means each and every Standard Service Agreement executed by and between Client and sticky.io, Inc. (“sticky.io”) related to any specific service, product, offering, etc., together with all exhibits, appendices, schedules and attachments thereto, including these Terms and Conditions and any other agreements, contracts, or terms applicable to Client’s use or purchase of any Services. In the event Client has entered into more than one Standard Service Agreement relating to the product or Service purchased by Client, each and every such agreement shall be read together within the meaning of “Agreement” as used herein. In the event of a conflict or disagreement between any Standard Service Agreement, the Standard Service Agreement covering the product or service at issue shall govern the Parties’ relationship with respect to any obligations, representations, warranties, or Disputes (defined below) arising from that product or service. Capitalized terms used but not defined in these Terms and Conditions shall have the meaning provided in the Agreement. The sticky.io Service is owned, operated, and provided to Client by sticky.io through the web site located at
www.sticky.io (“Site”). Each party agrees that any of its representatives, employees, or any person or entity acting on its behalf with respect to the provision of or use of the Services, shall be bound by, and shall abide by, the Agreement. Client further agrees that it is bound by the Agreement, whether it is acting on its own behalf or on behalf of a third party. Client agrees to provide true, accurate, current and complete information in all material respects related to Services; and (b) agrees to maintain and update this information to keep it true, accurate, current and complete in all material respects. If any information provided by Client is untrue, inaccurate, not current or incomplete in any material respect, sticky.io may, in addition to its other rights, terminate Client’s account and refuse to provide Client any and all current or future use of the Services.
1. CLIENT POLICY REQUIREMENTS. Client must meet the following requirements when conducting business related to use of the Services and when using the Services (all such requirements are the “Client Policy Requirements’”). Client will not engage in or encourage any activity in violation of applicable federal, state or local law and agrees to perform its rights, duties and obligations under the Agreement in compliance with all federal, state and local laws, rules, and regulations. Client will not post or transmit or encourage the posting or transmittal of any racial, ethnic, political, hate- mongering or otherwise objectionable content. Client will not engage in or encourage any software piracy, hacking, or harm to information technology systems. Client will not post or transmit or encourage the posting or transmittal of any pornographic, adult only, sexually oriented or related websites/creatives, as reasonably determined by sticky.io. Client will provide only accurate, complete, and not misleading information whenever any information about Client or Client’s use of Services is requested by sticky.io or if information is requested from Client through use of the Services. Client will not institute, assist, or become involved in any type of attack, including without limitation distribution of a virus, denial of service attacks upon the Services or the underlying software, or other attempts to disrupt the Services or the underlying software or any other person’s use or enjoyment of the Services. Client is solely responsible for its compliance with the Client Policy Requirements. If Client’s domain is listed on SpamHaus, and SpamHaus will not remove Client’s domain, sticky.io will take appropriate steps to assist Client in finding a resolution. If a resolution cannot be found by the parties, Client must be removed from sticky.io’s IP space within 2 weeks from the date that written notice is provided to Client by sticky.io. If Client does not remove itself from sticky.io’s IP space within such 2-week time period, then sticky.io reserves the right to terminate the Agreement (and Client’s use of the Site and/or the Services) immediately, without liability to sticky.io.
2. RIGHTS OF SERVICE. sticky.io hereby grants Client a non-exclusive right to use the Services in accordance with and subject to the terms of the Agreement. Client may not: (a) modify, translate, or create derivative works based on the Services, or permit other individuals to do so on its behalf; (b) rent, lease, assign or otherwise transfer rights to the Services; (c) use a single account for multiple business entities, unless specifically authorized by sticky.io in writing; and/or (d) provide third parties with access to Client’s account, except for third parties specifically authorized by sticky.io.
3. PROVISION OF SERVICES. sticky.io reserves the right to and Client consents to sticky.io’s right to alter or suspend the Services provided through the Site at any time in order to correct errors, perform maintenance, update features, comply with applicable laws and regulations and/or discontinue any features that may cause harm to sticky.io, Client or third parties. Client acknowledges and consents to sticky.io using third party service providers to provide support and services necessary for Services to be provided such as, by example only and without limitation, having Client Data (defined below) stored on servers not owned by sticky.io or through services provided by third parties. sticky.io may wish to or may be required to provide certain content, notices and/or license terms to Client and Client acknowledges that Client can access such content, notices and/or license terms at the URL designated via the Services (“Notices Site”) and Client consents to receiving any content, notices and/or license terms that sticky.io is required to provide to Client via the Notices Site. sticky.io has and will continue to be PCI compliant and agrees to comply with all applicable state and federal laws and regulations (including those relating to privacy and data security), with regards to its use, access and storage of Client Data. For purposes of these Terms and Conditions, “Client Data” shall mean all content, data, and information specifically input by Client via use of the Services.
4. INTELLECTUAL PROPERTY. Client represents and warrants to sticky.io that it owns and has all rights necessary to provide Client Data to sticky.io as part of using the Services. sticky.io shall acquire no ownership right, title, or interest in Client Data under the Agreement. All intellectual property rights in copyrightable data produced as a result of the processing and use of Client Data via the Services (the “IP Rights”) shall be the sole and exclusive property of Client. Notwithstanding anything set forth herein, Client shall not, as a result of the Agreement, acquire any property or other right, claim, or interest, including any patent right or copyright interest in any data, information, or other technology which is proprietary to or has been licensed to sticky.io, , or any of the information, systems, processors, equipment, computer software, derivative works, service marks or trademarks of sticky.io, whether created before, during or after the performance of the Agreement and regardless of whether it is used to deliver the Services. Client shall not reverse engineer, decompile, disassemble or otherwise attempt to determine the source code for any of the Services, any computer programs, any software, or any other trade secrets related to the Services or used to provide or support such Services.
5. FEES AND PAYMENT.
a. Fees. Fees shall be payable by Client to sticky.io pursuant to the Agreement. All monthly fees shall be payable in advance and be considered earned on receipt.
b. Payment. Client agrees to pay sticky.io all applicable charges to its account, in United States dollars, in accordance with sticky.io’s payment policy in effect at the time those charges become due. Client’s account will be debited with corresponding fees in accordance with the then-current rates. Client agrees to not charge back any of the related fees associated with its account, and any chargebacks will result in Client paying associated charge-back fees.
c. Method of Payment. Client expressly authorizes sticky.io to charge Client’s credit card, charge card, or debit card for any and all applicable account charges associated with Client’s account hereunder. If payment cannot be charged to Client’s credit/charge/debit card, for whatever reason, or if there is a charge- back for any reason, sticky.io reserves the right to either suspend or terminate Client’s account with sticky.io and the associated Services until the payment is received. If Client provides sticky.io with a credit card, charge card, or debit card that expires during the term of the Agreement, sticky.io reserves the right to charge any renewal card issued to Client as a replacement without any additional Client consent.
d. Failure to Make Payment. In the event of any failure by Client to make payment, or upon any Client charge- back, Client will be responsible for all reasonable expenses (including reasonable attorneys’ fees and costs) incurred by sticky.io in collecting such amounts plus interest at the rate of the lesser of one and one-half percent (1.5%) per month or the highest rate permissible under applicable law for the actual number of days elapsed.
e. No Refunds. Subject to Section 12, 100% of all fees due and paid are NON-REFUNDABLE.
6. REPRESENTATIONS AND WARRANTIES.a. Representations and Warranties of sticky.io. sticky.io represents and warrants that it has full power and authority to enter into the Agreement, and that the Agreement has been duly authorized, executed, and delivered by sticky.io and constitutes a valid, binding, and legally enforceable agreement of sticky.io.
b. Representations and Warranties of Client. Client hereto represents and warrants to sticky.io: (i) that it has sufficient authority to enter into the Agreement; (ii) that it will perform its rights, duties and obligations under the Agreement and at all times be in compliance with all applicable federal, state and local laws, rules, and regulations, as amended from time to time, including those with respect to consumer protection and data security/privacy; (iii) that it shall not be in violation of any obligation, contract, or agreement by entering into the Agreement, by performing its obligations under the Agreement, or by authorizing and permitting sticky.io to perform the Services hereunder; (iv) that it shall comply with all of the terms and conditions of the Agreement, including but not limited to, any other representations and warranties made by Client under any other provision of the Agreement or these terms, whether expressly stated in this Section 6.b or elsewhere; (v) that all information provided by Client to sticky.io is truthful, accurate, and complete, and is not misleading in any material respect; and (vi) that all Client Data is free of viruses, adware, spyware, worms or other malicious code.
7. INDEMNIFICATION. Each party hereto (“Indemnifying Party”) agrees to indemnify, defend and hold the other party and its members, managers, officers, directors, employees, agents, representatives and permitted successors and assigns (collectively, the “Indemnified Party”) harmless from and against all costs, losses, damages, liabilities and expenses imposed, incurred, or attributable to any claim, proceeding, or action (a “Claim”) made by a third party arising out of any breach by the Indemnifying Party of any representation, warranty, or covenant contained herein. The conditions for the indemnity set forth in this Section 7 are that (i) the Indemnified Party must notify the Indemnifying Party in writing promptly upon notice of the Claim; (ii) the Indemnifying Party will be permitted, through counsel mutually acceptable to the Indemnified Party and the Indemnifying Party, to answer and defend such Claim; and (iii) the Indemnified Party must provide the Indemnifying Party information and reasonable assistance at the Indemnifying Party’s expense to help the Indemnifying Party to defend such Claim. The Indemnifying Party may, upon written notice of any Claims to the Indemnified Party, undertake to conduct all proceedings or negotiations in connection therewith, assume the defense thereof, and if it so undertakes, it also must undertake all other required steps or proceedings to settle or defend any such Claim, including, without limitation, the employment of counsel which must be reasonably satisfactory to the Indemnified Party, and payment of all expenses. The Indemnified Party will have the right to employ separate counsel and participate in the defense of any Claim at its expense. The Indemnifying Party must reimburse the Indemnified Party upon demand for any payments made or loss suffered by it at any time after the date hereof, based upon the judgment of any court of competent jurisdiction or pursuant to a bona fide compromise or settlement of claims in respect to any damages related to any Claim. The Indemnifying Party may not settle any Claim on the Indemnified Party’s behalf without first obtaining the Indemnified Party’s written permission, which permission will not be unreasonably withheld, conditioned, or delayed. In the event that the Indemnifying Party and the Indemnified Party agree to settle a Claim, each Party agrees not to publicize the settlement without first obtaining the other party’s written permission. Notwithstanding the foregoing, Client agrees to defend and indemnify sticky.io from and against any and all requests for documents, subpoenas, civil investigate demands (“CIDs”), or any investigation or requests (together “Regulatory Demand”) made by any state or federal agency, court, arbitrator, administrator, regulator, or any other governmental entity, and regardless of whether Client has, or is alleged to have, breached any representation, warranty, or any other covenant contained herein. Client understands and agrees sticky.io may respond to any Regulatory Demand with or without prior notice to Client and with or without Client’s prior consent or approval. Client further agrees and acknowledges that Client is required to defend and indemnify sticky.io against any and all costs incurred in responding to or otherwise addressing a Regulatory Demand, including, but not limited to, attorney’s fees, costs, administrative costs associated with responding to the Regulatory Demand, and costs of copying, mailing, hosting, or transmitting information or documents related to the Regulatory Demand.
8. TERM. The initial term of the Agreement is as set forth in the Agreement, and it shall automatically renew for successive terms (e.g., monthly or annual) until terminated in accordance with Section 9.
9. TERMINATION.
a. Client’s Right to Terminate.
1. Month–
to-Month Clients. If the term of the Agreement is on a month-to-month basis, Client may terminate the Agreement at any time and for any reason by providing sticky.io with at least 30 days prior written notice thereof, provided Client pays in full the remaining amount, if any, due through the date of termination. If Client terminates the Agreement during its initial term, no refunds will be made to Client.
2. Annual and Multi-year Contract Clients. If the term of the Agreement is on an annual or multi-year basis, Client may terminate the Agreement by providing notice to sticky.io at least sixty (60) days’ prior the end of the then current term, provided Client pays in full the remaining amount, if any, due through the date of termination.
3. Material Breach. Notwithstanding anything to the contrary in the Agreement, Client may terminate the Agreement immediately without any liability to sticky.io, if sticky.io materially breaches the Agreement.
b. sticky.io’s Right to Terminate. sticky.io may terminate the Agreement, in its sole discretion, in advance of any renewal term by providing written notice to Client of its intention not to renew pursuant to this Section 9b. sticky.io may terminate the Agreement at any time upon at least fourteen (14) days written notice to Client. If sticky.io terminates the Agreement during the initial term of the Agreement, Client will be refunded any pre-paid amounts, on a pro rata basis, for the period of time access to the Services was terminated prior to the end of the initial term. In addition, notwithstanding anything contained in the Agreement to the contrary, sticky.io may immediately terminate Client’s account at any time during the term of the Agreement and discontinue Client’s participation in the Services, if sticky.io reasonably believes that Client’s conduct may be harmful to its business. Reasons for such termination may include, but are not limited to, the following: (A) failure to make payment in accordance with sticky.io’s terms; (B) if sticky.io reasonably believes that Client is in violation of Sections 16 or 17 of these Terms and Conditions; (C) if sticky.io reasonably believes that Client violated the Agreement or other policies or guidelines of sticky.io; and/or (D) if sticky.io reasonably believes Client’s conduct may be harmful to others who participate in the Services. If Client is terminated for any of these reasons during the initial term, Client shall not be entitled to receive any refunds from sticky.io for any pre-paid amounts for the period of time access to the Services was terminated prior to the end of the initial term. If Client is terminated due to lack of payment, including partial lack of payment for monthly value-added services or any transaction fees, no refund will be provided for monthly subscription or other payments made to date.
c. Effect of Termination. Upon termination of the Agreement, Client will no longer be able to access its account. However, upon any reasonable request from Client, and provided that such request is not intended to harass or abuse sticky.io or is not otherwise made for any unlawful, illegal, or prohibited purpose, sticky.io may grant Client 60-day limited access to recoup Client Data (“Request for Limited Access”) at the reasonable cost of Client. sticky.io shall be under no obligation to comply with any Request for Limited Access if providing such access would violate any state or federal law or regulation, or sticky.io is otherwise prohibited from doing so by any state or federal court, law enforcement agency, or regulatory body. A Request for Limited Access must be made in writing to sticky.io within ten (10) days of termination, regardless of which party terminates the Agreement. Upon any termination of the Agreement, and unless Client has made a Request for Limited Access, or the parties have otherwise reached an agreement related to Client Data, sticky.io reserves the right to delete any and all information in Client’s account, at sticky.io’s discretion at any time after the date that is sixty (60) days after the termination of the Agreement; provided that sticky.io, if requested by Client, must return to Client any Client Data during such sixty (60) day period, at Client’s expense, in a format reasonably determined by sticky.io. Regardless of which party terminates the Agreement, Client will be responsible for all charges incurred up to and through the date of termination. If Client (and not sticky.io) terminates the Agreement, Client’s payment obligations during the remainder of any unexpired initial term or renewal term will be immediately due in full.
d. Trial Service Period. If Client’s use of the Services is through a free trial, all access to Services shall terminate and all data created during the free trial shall no longer be available at the conclusion of the free trial period unless Client enters into a standard license agreement with sticky.io for Services prior to the conclusion of the free trial period.
10. MARKETING. Client hereby grants sticky.io a non-exclusive, non-transferable, worldwide, royalty-free license to use, reproduce, publicly and digitally distribute, display, and perform, transmit, and broadcast Client’s name, logos, trademarks, trade names, service marks, URLs, and slogans to advertise, market, promote, and publicize the Services, including the inclusion of Client in sticky.io’s marketing materials and on sticky.io’s “clients and testimonial page”.
11. NO SPAM POLICY/CAN-SPAM COMPLIANCE. sticky.io will not tolerate the sending of unsolicited email messages in violation of the CAN-SPAM Act of 2003, as amended from time to time (the “CAN-SPAM). Client represents, warrants, and agrees it will not violate CAN-SPAM. Client will be found in violation of this policy if Client sends unsolicited mailings in violation of the CAN-SPAM Act using any portion/feature of the Services, or if Client knowingly sends unsolicited mailings. Client will not disclose or use any sticky.io URLs in emails sent using the Services. If Client does send emails containing sticky.io URLs to Client’s subscribers, or if Client is sending order confirmation or shipping confirmation emails, then Client must comply with the CAN-SPAM Act when sending such emails with sticky.io referenced in the email. Violation of this policy is grounds for immediate termination of the Agreement and refusal of future use of the Services.Client expressly agrees and understands that sticky.io is not, and shall not be treated or otherwise considered to be the sender, seller, marketer, or initiator of any emails sent by Client referencing or otherwise referring to or attaching URLs associated with sticky.io. Client will be solely responsible for any actual or purported CAN-SPAM violations and is obligated to defend and indemnify sticky.io against any and all Claims or Regulatory Demands, pursuant to Section 7, arising out of, related to, or referencing CAN-SPAM or electronic mail correspondence of any kind.
12. SERVICE LEVEL AGREEMENT. sticky.io will supply technical support regarding sticky.io Services at Client’s expense via phone and email as it pertains to the Services, as set forth in the Agreement. If there is unscheduled monthly downtime exceeding one hour twice during the term of the Agreement, sticky.io will promptly credit Client 5% of the next monthly fee for the monthly fee due in the period following the second such unscheduled downtime. If there is unscheduled monthly downtime exceeding one hour three times during the term of the Agreement, sticky.io will promptly credit Client an additional 5% of the next monthly fee for the monthly fee due in the period following the third such unscheduled downtime.
13. DATA.a. Data Storage. The Services and Client Data will be hosted on servers owned, leased, or designated by sticky.io or the servers owned, leased, or designated by sticky.io service providers, unless otherwise agreed by the parties. In the event that Client experiences any unscheduled interruption lasting more than one hour to the inbound data capture feature of the Service more than 2 times during the term of the Agreement, then Client may in its sole discretion provide 3 days’ notice to sticky.io any time following the third such interruption to terminate the Agreement without any cost or liability, provided that all fees up until the date of termination will be paid by Client.
b. Client Data. Subject to Section 13.d below, sticky.io shall not disclose Client Data to any third party unless (x) directed by Client; (y) such disclosure is made by sticky.io in response to an order, subpoena, or Regulatory Demand by any state or federal court, law enforcement agency, regulator, or any other governmental body, provided that, if permitted by law, sticky.io provides Client prompt notice of such impending disclosure to permit Client to seek confidential treatment thereof; or (z) such disclosure is in aggregate in non- personally identifiable form. Upon Client’s request, Client is entitled to, and sticky.io will provide Client, at Client’s expense, all Client Data, in a format reasonably determined by sticky.io.
c. sticky.io’s Data. Client Data specifically does not include any information and/or campaign methodologies generated by the sticky.io system, regardless of whether or not the information or campaign methodology was generated as a result of Client’s use of the sticky.io system. All data regarding or resulting from use of the Services that is not Client Data belongs to sticky.io (collectively “sticky.io’s Data”). Client agrees that sticky.io owns all rights in sticky.io’s Data.
d. Use of Client Data. Notwithstanding anything to the contrary, Client grants sticky.io the limited, perpetual, irrevocable right to use, process, distribute, reproduce and modify Client Data so long as such Client Data, if displayed or distributed, is displayed or distributed in an aggregated, non-personally identifiable form and Client agrees that any data resulting from the exercise of such rights by sticky.io that is not Client Data is sticky.io’s Data.
14. DISCLAIMERS.
STICKY.IO DOES NOT WARRANT THAT CLIENT’S USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ALL CONTENT OR INFORMATION SUBMITTED BY CLIENT WILL REMAIN AVAILABLE AT ALL TIMES OR WILL NEVER BE DELETED, CORRUPTED OR OTHERWISE UNAVAILABLE. CLIENT ACKNOWLEDGES AND AGREES THAT CLIENT IS SOLELY RESPONSIBLE TO DETERMINE WHETHER THE SERVICES SUFFICIENTLY MEET CLIENT’S REQUIREMENTS. STICKY.IO DOES NOT WARRANT AGAINST ANY UNAUTHORIZED ACCESS TO OR HACKING OF CLIENT DATA OR MISTAKENLY GRANTED ACCESS BY STICKY.IO OR THROUGH THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, CLIENT EXPRESSLY AGREES THAT CLIENT’S USE OF THE SITE AND SERVICES IS AT CLIENT’S OWN RISK. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, THE SITE AND/OR SERVICES ARE AVAILABLE ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF NON-INFRINGEMENT, PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ACCURACY, OR IMPLIED WARRANTIES ARISING FROM COURSE OF PERFORMANCE OR COURSE OF CONDUCT AND WE DISCLAIM ANY WARRANTY REGARDING THE AVAILABILITY, ACCURACY OR CONTENT OF THE SITE, SERVICES, AND/OR INFORMATION, PRODUCTS, OR SERVICES AVAILABLE THROUGH THE SITE AND/OR SERVICES, OR ANY ECONOMIC BENEFIT CLIENT MAY GAIN FROM USE OF THE SITE AND/OR SERVICES.
FROM TIME TO TIME, STICKY.IO MAY PROVIDE CLIENT WITH RECOMMENDATIONS, BEST PRACTICES, OR OTHER ADVICE OR GUIDANCE TO HELP CLIENT ENSURE ITS WEBSITE OR APPLICATION COMPLIES WITH STATE, FEDERAL, OR LOCAL LAWS OR REGULATIONS. ANY SUCH GUIDANCE IS NOT LEGAL ADVICE AND SHOULD NOT BE TREATED AS LEGAL ADVICE. CLIENT IS SOLELY RESPONSIBLE FOR ENSURING ITS WEBSITE OR APPLICATION COMPLIES WITH ALL STATE, FEDERAL, OR LOCAL LAWS OR REGULATIONS AND SHOULD RETAIN ITS OWN LEGAL COUNSEL TO ENSURE ITS COMPLIANCE. STICKY.IO EXPRESSLY DISCLAIMS ANY LIABILITY TO CLIENT ARISING OUT OF RELATING TO ANY RECOMMENDATIONS, BEST PRACTICES, OR OTHER ADVICE OR GUIDANCE PROVIDED TO CLIENT. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO CLIENT. STICKY.IO MAKES NO GUARANTEES, REPRESENTATIONS OR WARRANTIES AS TO THE LEVEL OF LEADS OR SIGN-UPS GENERATED THAT CLIENT CAN EXPECT BY ENTERING INTO THE AGREEMENT AND SUBSCRIBING TO THE SERVICES.
15. APPLICABLE LAW. The validity, interpretation, construction, and performance of the Agreement shall be governed by and construed in accordance with the internal substantive laws of the State of California, without giving effect to its principles of choice of law or conflicts of law thereunder. Subject to Section 27 of these Terms and Conditions, any action or proceeding not subject to arbitration pursuant to Section 27 seeking to enforce any provision of, or based on any right arising out of or related to the Agreement must be exclusively brought against either of the parties in the courts of the State of California located in the city of San Francisco or, if it has or can acquire jurisdiction, in the United States District Court located in the city of San Francisco, California, and each of the parties consents to the jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein. Process in any action or proceeding referred to in the preceding sentence may be served on either party anywhere in the world. In the event it shall become necessary for either party to take action of any type whatsoever to enforce the terms of the Agreement, the prevailing party shall be entitled to recover all of its attorneys’ fees, costs, and expenses, including all out of pocket expenses, incurred in connection with any such action, including any negotiations, mediation, arbitration, litigation, and appeals.
16. LIMITATION ON LIABILITY. CLIENT ACKNOWLEDGES AND AGREES THAT STICKY.IO SHALL NOT BE LIABLE HEREUNDER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY LOSS OF USE, LOSS OF BUSINESS, OR LOSS OF PROFITOR REVENUE, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY SERVICES (INCLUDING THIRD-PARTY SERVICES), REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, STRICT LIABILITY, WILLFUL, INTENTIONAL, OR WANTON MISCONDUCT, OR OTHERWISE), EVEN IF STICKY.IO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. CLIENT FURTHER SPECIFICALLY ACKNOWLEDGES THAT STICKY.IO IS NOT LIABLE, AND CLIENT AGREES NOT TO SEEK TO HOLD STICKY.IO LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER ACCOUNT HOLDERS OR USERS OF THE SERVICES AND OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF THE SERVICES AND EXTERNAL SITES AND OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH CLIENT.STICKY.IO’S TOTAL CUMULATIVE LIABILITY HEREUNDER, INCLUDING ALL AMOUNTS PAYABLE BY STICKY.IO UNDER SECTIONS 7 AND 17, REGARDLESS OF THE FORM OF ACTION, WILL NOT EXCEED AN AMOUNT EQUAL TO ALL AMOUNTS ACTUALLY RECEIVED BY STICKY.IO FROM CLIENT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE INCURRENCE OF ANY SUCH LIABILITY. THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT THE POTENTIAL LIABILITY OF STICKY.IO ARISING OUT OF THE AGREEMENT. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS SECTION 16 ARE REASONABLE AND ARE INTEGRAL TO THE AMOUNT OF CONSIDERATION LEVIED IN CONNECTION WITH CLIENT’S USE OF THE SERVICES.
17. CONFIDENTIALITY. Each party hereto may have access to confidential, proprietary or trade secret information disclosed by the other party, including, without limitation, its ideas, trade secrets, procedures, methods, systems, and concepts, whether disclosed orally or in writing through any media (“Confidential Information”). sticky.io’s Confidential Information includes, without limitation, the Services, the software and information related thereto, and the underlying software, hardware, and other technology used by sticky.io to provide the Services. Each party acknowledges that each party’s Confidential Information remains the sole and exclusive property of such party. Each party will restrict disclosure of Confidential Information of the other party to its officers, directors, employees, affiliates. and agents with a need to know; will not disclose Confidential Information of the other party to any other party; in the case of Client, will not pass out or share any login’s or login credentials to anyone for purposes of evaluating or examining the Services; and will otherwise protect Confidential Information of the other party in the same manner as it protects its own proprietary information (but will in no case take less than reasonable measures). No information will be deemed “Confidential Information” of a party to the extent that the other party can show that it: (a) was in the public domain when communicated to such other party; (b) is communicated to such other party by another party free of any confidentiality obligation; or (c) was in such other party’s possession free of any obligation of confidence when first communicated to such other party. Neither party will be in violation of this Section 17 by making a disclosure in response to a valid order or directive by a court or other governmental body, provided that, if permitted by law or otherwise feasible given any time constraints or deadlines set forth in any order or directive by a court of governmental body, such party provides the other party prompt notice of such impending disclosure to permit such other party to seek confidential treatment thereof. Any provision herein to the contrary notwithstanding, sticky.io’s total cumulative liability under this Section 17, regardless of the form of action, will not exceed an amount equal to all amounts actually received by sticky.io from Client during the twelve (12) month period immediately preceding the any allegation by Client of disclosure of Confidential Information.
18. NON-COMPETE/NON-SOLICIT. Client agrees that during the term of the Agreement and for one year thereafter, Client will not develop, offer, sell, or distribute a service or any other product, software, hardware, etc. which competes in any way with the Services (“Competing Service”), nor will Client solicit, employ, offer to employ, or otherwise engage as an employee, independent contractor, or otherwise, any person who is or was an employee of the Company at any time nor will Client, in any manner, induce or attempt to induce any employee of sticky.io to terminate the employee’s employment with sticky.io. A Competing Service is defined as a service that seeks to acquire clients for the purpose of offering a customer relationship management or campaign management software system comparable to, or which would otherwise serve as a replacement or substitute for, the Services. Notwithstanding anything to the contrary in this Section 18, Client shall be permitted to develop and utilize a service similar to the Service solely for use by Client in connection with its own marketing activities. Client understands that violation of this clause is grounds for immediate termination of the Agreement by sticky.io with no liability on the part of sticky.io. Client further understands that sticky.io would be irreparably injured by a breach of the Agreement by Client and as such, sticky.io may seek equitable relief to stop the violation and competing activity without proof of actual damages and without any need to secure or post any bond in connection therewith, in the event of any breach or threatened breach of the provisions of the Agreement, in addition to all other remedies available at law or in equity.
19.
DUTY TO DISCLOSE CHANGE OF CONTROL. If Client’s ownership changes whereby any entity acquires a majority ownership or other controlling interest in Client during the term of the Agreement, or Client otherwise undergoes a Change of Control, Client shall disclose to sticky.io immediately the name of such entity.
20. HEADINGS AND REFERENCES. Headings of Sections are for the convenience of reference only. Words indicated in quotes and capitalized signify an abbreviation or defined term for indicated words or terms, including those definitions contained in the opening paragraph.
21. ENTIRE AGREEMENT. The Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and all software related thereto and supersedes all prior agreements or understandings between the parties and their predecessors in interest with respect to such subject matter and all software related thereto.
22. SURVIVAL. The terms of Sections 4, 5, 7, 9.e, 13.b-d, and 14 through 27 of these Terms and Conditions shall survive the termination or expiration of the Agreement.
23. CONTACT INFORMATION; NOTICES AND AMENDMENT REQUESTS. Client’s contact information is as set forth in the Agreement. If during the term Client’s contact information changes, Client shall deliver updated information to sticky.io at support@sticky.io. All notices or other communications required or permitted to be given hereunder (including any notice of sticky.io’s contact information) must be (as elected by the party giving such notice) (a) personally delivered at the address set forth on the signature page hereof; (b) transmitted by postage prepaid mail to the address set forth on the signature page hereof; or (c) faxed to the party at fax number set forth on the signature page hereof. Except as otherwise specified herein, all notices and other communications will be deemed to have been given on (x) the date of receipt if delivered personally; (y) the date that is five (5) days after posting if transmitted by mail; or (z) the date of confirmation receipt if faxed. Client acknowledges that Client must provide sticky.io with an email address (“Contact Email”) either through a feature in the Services or via email to sticky.io at ContactEmail@sticky.io where requests by sticky.io to modify any part of Agreement can be sent. If sticky.io sends Contact Email a request for Client to agree to be bound by an updated version of any part of Agreement and Client either (1) did not provide Contact Email as required hereunder; (2) failed to update Contact Email as required hereunder; (3) does respond to such request within thirty (30) days of such request; or (4) denies such request, sticky.io is permitted to terminate the Agreement without penalty.
24. RELATIONSHIP OF THE PARTIES. Nothing contained herein will be construed to create (1) a partnership relationship between the parties; (2) the relationship of employer and employee between the parties or between a party or any of such party’s employees or agents and any of the other party’s employees or agents; or (3) create any other form of agency relationship, whether express or implied, or whether under any actual or apparent authority. It is the express intent of the parties that no party is an employee or agent of the other party for any purpose, but is an independent contractor for all purposes and in all situations. Each party and its directors, officers, employees and agents may not represent that they are employees or agents of the other party, nor may they in any manner hold themselves out to be employees or agents of the other party.
25. SEVERABILITY. If any provision of the Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, such provision will, to such extent as it is determined to be invalid or unenforceable, be reformed without further action by the parties to the extent necessary to make the provision valid and enforceable and no other provision will be affected or impaired thereby.
26. COUNTERPARTS. These Terms and Conditions may be executed in separate counterparts (each of which is an original and all of which together will be deemed one and the same instrument) and will be fully effective as of the date executed copies are exchanged between the parties. Counterparts may be executed either in original, emailed (e.g. .PDF, DocuSign, etc.), or faxed form and the parties adopt any signatures received by email or a receiving fax machine as original signatures of the parties.
27. DISPUTE RESOLUTION AND CLASS ACTION/JURY TRIAL WAIVER. MANDATORY ARBITRATION. THE PARTIES HEREBY AGREE THAT, EXCEPT AS EXPRESSLY EXEMPTED BELOW, ANY AND ALL COMPLAINTS, CLAIMS, DISPUTES, OR DISAGREEMENT (“DISPUTE”) ARISING FROM OR RELATED TO THE AGREEMENT, THE TERMS AND CONDITIONS, THE POLICIES, CLIENT’S USE OF OR INTERACTION WITH THE SITE, THE SERVICES, OR ANY DATA OR INFORMATION CLIENT MAY PROVIDE TO STICKY.IO OR THAT IT MAY GATHER IN CONNECTION WITH SUCH USE, INTERACTION OR TRANSACTION (COLLECTIVELY, “STICKY.IO TRANSACTIONS OR RELATIONSHIPS”), SHALL BE RESOLVED THROUGH MANDATORY, BINDING ARBITRATION AS PROVIDED BELOW. THIS MEANS NEITHER PARTY WILL HAVE THE RIGHT TO PURSUE A CLAIM IN COURT, OR HAVE A JURY DECIDE THE CLAIM, AND CLIENT WILL NOT HAVE THE RIGHT TO BRING OR PARTICIPATE IN ANY CLASS ACTION OR SIMILAR PROCEEDING IN COURT OR IN ARBITRATION. THE ARBITRATION REQUIRED UNDER THE AGREEMENT INVOLVES INTERSTATE COMMERCE AND SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT, 9 U.S.C. §§ 1-16, AS IT MAY BE AMENDED OR ANY SUCCESSOR STATUTE AND NOT BY STATE LAW. a. Mandatory Informal Dispute Resolution. Before either party may seek legal recourse of any kind, the aggrieved or purportedly aggrieved party must provide notice of the Dispute to the other party in writing and coordinate a mediation within thirty (30) days which may be attended in person or via video conference for no less than thirty (30) minutes. The parties agree to make every reasonable effort to informally resolve any Dispute. If the Dispute has not been resolved within thirty (30) days of the non-aggrieved party’s receipt of notice of the Dispute, the aggrieved party may proceed with pursuing legal action as set forth below.
b. Mandatory, Binding, Individual Only Arbitration. If efforts at informal dispute resolution as set forth in Section 27.a fail, the parties agree that any and all Disputes arising out of, relating to, or connected in any way with any sticky.io Transactions or Relationships shall be resolved exclusively by final and binding arbitration (“Arbitration”) administered by JAMS or its successor (“JAMS”) and conducted in accordance with the JAMS Streamlined Arbitration Rules And Procedures in effect at the time the Arbitration is initiated or, if the amount in controversy exceeds $100,000, in accordance with the JAMS Comprehensive Arbitration Rules And Procedures then in effect (respectively, the “Applicable Rules”). The Applicable Rules can be found at
www.jamsadr.com. If JAMS is no longer in existence, the Arbitration shall be administered by the American Arbitration Association or its successor (the “AAA”) instead, and conducted in accordance with the AAA Commercial Arbitration Rules in effect at that time (which shall be the “Applicable Rules” in such circumstances). This Section 27 shall not prevent any party from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
c. Agreed Arbitration Procedure The parties to the following arbitration procedure: The Arbitration shall be conducted before a single arbitrator selected in accordance with the Applicable Rules or by mutual agreement between Client and sticky.io (the “Arbitrator”);To initiate a Dispute, the aggrieved party must follow the instructions on how to initiate an arbitration available from JAMS at
http://www.jamesadr.com or as set forth in any other Applicable Rules. The Arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute arising under or relating to the validity, interpretation, applicability, enforceability, or formation of the sticky.io Transactions or Relationships and/or the arbitration agreement contained in this Section 27, including but not limited to any claim that all or any part of the sticky.io Transactions or Relationships is void or voidable; The Arbitration shall be held in San Francisco, California or such other location as sticky.io maintains its corporate headquarters. If the Parties agree, the Arbitration may be conducted solely on the papers, based on documents, evidence, or other papers submitted by the Parties. The Arbitrator shall Apply internal laws of the State of California consistent with the Federal Arbitration Act and applicable statutes of limitations, or, to the extent (if any) that federal law prevails, shall apply the law of the United States, irrespective of any conflict of law principles; Entertain any motion to dismiss, motion to strike, motion for judgment on the pleadings, motion for complete or partial summary judgment, motion for summary adjudication, or any other dispositive motion consistent with California or federal rules of procedure, as applicable; Honor claims of privilege recognized at law; Upon motion by either party or upon agreement between the parties, grant any protective orders or issue confidentiality agreements to protect Confidential Information as set forth in Section 17; and Have authority to award any form of legal or equitable relief; Issue a written award supported by a statement of decision setting forth the Arbitrator’s complete determination of the dispute and the factual findings and legal conclusions relevant to it (an “Award”).
d. INDIVIDUAL ONLY ARBITRATION AND CLASS ACTION WAIVERTHE PARTIES AGREE THAT, TO THE FULLEST EXTENT PERMISSIBLE BY FEDERAL, STATE, OR LOCAL LAWS, ANY AND ALL DISPUTES MAY ONLY BE RESOLVED ON AN INDIVIDUAL BASIS, AND NEITHER PARTY MAY PURSUE A DISPUTE AS A PLAINTIFF OR A CLASS MEMBER IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION, INCLUDING ANY CLASS ARBITRATION, MASS ARBITRATION, CONSOLIDATED ARBITRATION, CLASS ACTION, CONSOLIDATED ACTION, REPRESENTATIVE ACTION, OR ANY OTHER ARBITRATION OR ACTION WHERE THE CLAIMS OF MORE THAN ONE PARTY ARE LITIGATED IN THE SAME ACTION. THE PARTIES AGREE THE ARBITRATOR CAN RESOLVE ONLY CLIENT’S AND/OR STICKY.IO’S INDIVIDUAL CLAIMS AND HAS NO AUTHORITY TO ARBITRATE A DISPUTE ON A CLASS-WIDE BASIS AND SHALL NOT CONSOLIDATE, COMBINE, OR JOINTLY ARBITRATE A DISPUTE OF MORE THAN ONE (1) PERSON IN A SINGLE ARBITRATION, UNLESS OTHERWISE EXPRESSLY AGREED TO IN WRITING BY THE PARTIES.
e. JURY TRIAL WAIVERBY AGREEING TO PURSUE ALL DISPUTE THROUGH MANDATORY, BINDING ARBITRATION, THE PARTIES UNDERSTAND THEY ARE WAIVING THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. FURTHER, IN THE EVENT THAT A DISPUTE IS PERMITTED TO PROCEED IN A COURT OF LAW, AS OPPOSED TO ARBITRATION, FOR ANY REASON, INCLUDING BUT NOT LIMITED TO, BY COURT ORDER, ORDER BY THE ARBITRATOR, AGREEMENT BETWEEN THE PARTIES, OR IN AN ACTION TO ENFORCE OR CHALLENGE THE AWARD, THE PARTIES AGREE TO WAIVE ALL RIGHTS TO A JURY TRIAL, INSTEAD ELECTING THAT THE DISPUTE WILL BE RESOLVED BY THE ASSIGNED OR APPOINTED JUDGE. IF THIS JURY WAIVER IS FOUND TO BE INVALID, UNENFORCEABLE, OR ILLEGAL THEN ANY DISPUTE SHALL BE RESOLVED BY JUDICIAL REFERENCE PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 638 ET SEQ. BEFORE A MUTUALLY ACCEPTABLE REFEREE OR, IF NONE IS SELECTED, THEN A REFEREE CHOSEN BY THE PRESIDING JUDGE OF THE CALIFORNIA SUPERIOR COURT FOR SAN FRANCISCO COUNTY, PROVIDED THIS PROVISION SHALL NOT RESTRICT ANY PARTY FROM SEEKING TO ENFORCE ANY PREJUDGMENT REMEDIES.
f. Enforcement of or Challenges to the Award. Either party may file the Award in any court having jurisdiction thereof or having jurisdiction over the relevant party or its assets, for the purpose of confirming, enforcing, or challenging the Award. To the extent the Award is filed with a court, the Parties must comply with the terms of any confidentiality agreement or protective order issued in the Arbitration and take steps, as necessary, to protect any covered information from public disclosure. Should a party seek to challenge the Award, the sole grounds for doing so shall be those allowed under 9 USC § 9 or any applicable state rules relating to challenges of arbitration awards. In the event it shall become necessary for either party to take action of any type whatsoever to enforce the terms of the Agreement, the prevailing party shall be entitled to recover all of its attorneys’ fees, costs, and expenses, including all out of pocket expenses that are not taxable as costs, incurred in connection with any such action, including any costs, fees, or expenses associated with any negotiations, mediation, arbitration, litigation, and appeals.
g. SeverabilityIf any provision of the Arbitration Agreement contained in this Section 27 is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Applicable Rules, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (e) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither Client nor sticky.io shall be entitled to arbitrate their dispute, and must instead bring any claims in a court of competent jurisdiction.
28. ANTI-TERRORISM, ANTI-MONEY LAUNDERING, ANTI-CORRUPTION, AND SANCTIONS COMPLIANCE. Each party represents and warrants that (a) neither it nor any person or entity that directly or indirectly owns an interest in it nor any of its officers, directors, or managing members is a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control ("
OFAC") of the Department of the Treasury (including those named on OFAC's Specially Designated and Blocked Persons List) or under any statute, executive order (including Executive Order 13224 (the "
Executive Order") signed on September 24, 2001, and entitled "Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism"), or other governmental action; (b) its activities do not violate the International Money Laundering Abatement and Financial Anti-Terrorism Act of 2001 or the regulations or orders promulgated thereunder (as amended from time to time, the "
Money Laundering Act") and Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (the "
Patriot Act"); and (c) throughout the term of this Agreement, it shall comply with the Executive Order, the Money Laundering Act, and the Patriot Act. Each party further represents and warrants that it is in compliance, and will remain in compliance, with (i) the U.S. Export Administration Regulations administered by the Bureau of Industry and Security, Department of Commerce (“
BIS”), and any other export and import laws that may be applicable to this Agreement; (ii) all applicable Bank Secrecy Act (“
BSA”) laws, regulations and government guidance on BSA compliance and on the prevention and detection of money laundering violations; and (iii) all laws, rules, and regulations of any jurisdiction applicable to it concerning or related to bribery or corruption (the "
Anti-Corruption Laws"), including the U.S. Foreign Corrupt Practices Act (the "
FCPA") and the U.K. Bribery Act of 2010.
ETHOCA REQUIRED TERMS TO RECEIVE CHARGEBACK ALERTS The following provisions A – J only apply in connection with Clients that receive Services provided by or through Ethoca Limited (and its affiliates):
A. Definitions. “
Confirmed Fraud Data” means data relating to card transactions that have been confirmed as fraud by the cardholders and provided to Merchant (defined below) as part of the Confirmed Fraud Service. Confirmed Fraud Data may include the following data elements: (i) a Visa account number, which number may be a cancelled Visa account number; (ii) merchant descriptor; (iii) authorization date and/or time; (iv) POS code; (v) authorization amount; and (vi) any source identifier provided by Visa to permit tracking of the source of the Confirmed Fraud Data.
“Confirmed Fraud Service” means the service provided by sticky.io to Merchant in which sticky.io provides Merchant with Confirmed Fraud Data relating to transactions with Merchant for the limited fraud-prevention use contemplated under this Agreement.
“Merchant” means the sticky.io client receiving Ethoca data pursuant to the Standard Service Agreement to which these terms have been incorporated in by reference.
B. Merchant Permitted Uses; Restrictions. Merchant: (a) may only use Confirmed Fraud Data i) for the purpose of avoiding fraud loss or associated administrative costs on the specific transaction to which the Confirmed Fraud Data relates and ii) within Merchant’s business on other or future transactions solely within Merchant’s business to which such data directly relates for no other purpose; (b) may not use any of such data as a factor in determining a consumer’s eligibility for credit, insurance, employment or for any purpose identified in section 604(a) of the FCRA (15 U.S.C. § 1681b(a)); (c) must not combine such data with any other data from any third party source, including, without limitation “consumer report” information as defined in section 603(d) of the FCRA (15 U.S.C. § 1681a(d)); (d) must maintain the security of such data in accordance with PCI DSS (as such may be amended) or other standard communicated by sticky.io; (e) must comply with any other requirements or limitations relating to the use of such data as required by any applicable card association from time to time; and (f) must not share any such data with any third party.
C. No Publicity. Merchant must not nor permit anyone else to (a) unless otherwise agreed to in writing by the parties, issue a press release or make any other public disclosure relating to the Chargeback Alerts services of this Agreement (including the existence and its terms), (b) disclose Visa as a data source or (c) make any use of Visa’s or its Affiliates’ trademarks, trade names, or service marks or other designations, including, without limitation, in the name of and/or in marketing materials without Visa’s prior written consent.
D. Notification Requirement. If Merchant experiences unauthorized access to any of its facilities or systems pursuant to which it believes or suspects that one or more third parties may have been able to obtain access to Confirmed Fraud Data including through breach, loss, or misdirection, Merchant will, within twenty-four (24) hours, notify sticky.io and: (a) provide sticky.io with all available information regarding the nature and scope of such unauthorized access; and (b) fully cooperate with sticky.io or its suppliers in sticky.io’s or its supplier’s handling of such matter, including without limitation cooperation with regard to any investigation, reporting and other obligations required by applicable law. In this regard, subject to applicable law, Merchant will not provide any notice or communication regarding unauthorized access to Confirmed Fraud Data to any governmental, law enforcement or other third party until sticky.io or its suppliers have had an opportunity to review and approve such notice or communication.
E. Disclaimer. Merchant acknowledges that sticky.io and its suppliers make no representation, warranty, or guarantee, whether express or implied under applicable law, of any kind with respect to any deliverables provided by sticky.io, and that sticky.io and its suppliers will have no liability to Merchant resulting from Merchant’s use of such deliverables. sticky.io AND ITS SUPPLIERS PROVIDE THE DELIVERABLES “AS IS” AND EXPRESSLY DISCLAIM ALL WARRANTIES IN CONNECTION WITH THIS AGREEMENT AND THE DELIVERABLES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTIES AS TO THE ACCURACY, COMPLETENESS OR CURRENTNESS OF ANY DELIVERABLES, TITLE, MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
F. Representations and Warranties. Merchant represents and warrants that: (a) the Confirmed Fraud Data will not be used by Merchant as a factor in determining a consumer’s eligibility for credit, insurance, employment or for any purpose identified in section 604(a) of the FCRA (15 U.S.C. § 1681b(a)); and (b) it will comply with all applicable laws in connection with performing its obligations under this Agreement.
G. Indemnification; Limitation of Liability.(i) Without limiting sticky.io’s available remedies, Merchant agrees to defend, indemnify, and hold harmless sticky.io and/or its suppliers from and against any and all claims, demands, judgments, liability, damages, losses, costs and expenses, including reasonable attorneys’ fees and costs, arising out of or in connection with (a) facts, or alleged facts which, if proven, would constitute a breach by Merchant of any obligations under this Agreement, (b) Merchant’s misuse, unauthorized use, unlawful use, or unauthorized disclosure of the Confirmed Fraud Data, (c) the violation, infringement, or misappropriation of any third-party Intellectual Property Right by Merchant, (d) the misuse or misappropriation of sticky.io’s or its supplier’s trademarks, service marks, trade names, and trade dress, or (e) the negligence or willful misconduct of Merchant or any of its Personnel. sticky.io will give Merchant prompt written notice of any claim of which it has knowledge, and will provide Merchant with the assistance, information and authority necessary to perform Merchant’s obligations under this Section G, provided however, that any failure to provide such notice or assistance will not limit Merchant’s indemnification obligations hereunder except to the extent that Merchant is materially prejudiced by such failure.
H. Limitation of Liability. IN NO EVENT WILL: (a) STICKY.IO OR ITS SUPPLIERS BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, ARISING OUT OF OR IN CONNECTION THE AGREEMENT OR ANY SERVICES, REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, STRICT LIABILITY, WILLFUL, INTENTIONAL, OR WANTON MISCONDUCT, OR OTHERWISE), WHETHER FROM A THIRD PARTY SERVICE PROVIDER, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED TO THE MERCHANT IN ADVANCE OR COULD HAVE BEEN REASONABLY FORESEEN BY MERCHANT. MERCHANT FURTHER SPECIFICALLY ACKNOWLEDGES THAT STICKY.IO IS NOT LIABLE, AND MERCHANT AGREES NOT TO SEEK TO HOLD STICKY.IO LIABLE, FOR THE CONDUCT OF THIRD PARTIES AND THAT THE RISK OF INJURY RELATING TO ANY THIRD PARTY CONDUCT RESTS ENTIRELY WITH MERCHANT. STICKY.IO’S TOTAL CUMULATIVE LIABILITY WITH RESPECT TO ANY CLAIM, LOSS, OR LIABILITY IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION, WILL NOT EXCEED AN AMOUNT EQUAL TO ALL AMOUNTS ACTUALLY RECEIVED BY STICKY.IO UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE INCURRENCE OF ANY SUCH LIABILITY. THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT THE POTENTIAL LIABILITY OF STICKY.IO ARISING OUT OF THIS AGREEMENT.
I. Equitable Relief. Merchant acknowledges that any breach of the licenses provided to Merchant will give rise to continuing irreparable injury to sticky.io and its suppliers which is inadequately compensable in damages at law and, without prejudice to any other remedy available to sticky.io and its suppliers, will entitle sticky.io to injunctive relief without the requirement of posting any bond. Merchant acknowledges that sticky.io may elect to pursue damages for all/any claims related to this Agreement.
J. Audit Rights. Merchant will allow sticky.io or its designated agent access during normal business hours throughout the term of this Agreement and for six (6) months thereafter to perform audits of Merchant’s facilities, operations, and applicable business records to ensure Merchant’s compliance with this Agreement. Merchant will also provide, at sticky.io’s reasonable request, to sticky.io during normal business hours with books, records, and supporting documentation adequate to evaluate Merchant’s performance. Similarly, sticky.io may monitor Merchant’s use of Confirmed Fraud Data. sticky.io reserves the right, in its sole discretion, to immediately suspend Merchant’s use of the Confirmed Fraud Data in the event of any suspected or actual violation of the terms of this Agreement. Without limiting sticky.io’s available remedies, in the event an audit reveals that Merchant is not in compliance with the terms and conditions of this Agreement, Merchant will be responsible for the costs of the audit.
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