WOOLTON

TERMS OF SERVICE

Last Modified:  APRIL 1, 2016

THESE TERMS OF SERVICE (the “Terms of Service” or this “Agreement”), together with any documents it expressly incorporates, governs the relationship and interaction between You (“You”, “Your”, “Retailer” or “Customer”) and Woolton, Inc., together with its parents, subsidiaries and affiliates (collectively, “Woolton”, “Company”, “We”, “Us” or “Our”) and Your use of RetailApp, Intelligent Display, The Boutique (and together with any other software offered or provided by Woolton, the “Software”), together with any associated services, features, functionality, content, applications, or products (collectively, the “Services”).  If You are entering into this Agreement on behalf of a company or other legal entity, You represent that You have the authority to bind such entity and its Affiliates to the terms and conditions contained in this Agreement, in which case the terms “You” or “Your” shall refer to such entity and its Affiliates.  This Agreement is effective between You and Us as of the Effective Date.

 

*IMPORTANT:  PLEASE READ CAREFULLY*

BY CHECKING THE BOX TO AGREE OR CLICKING AN “I AGREE” BUTTON, WHENEVER PRESENTED, TO AGREE TO THESE TERMS AND CONDITIONS, OR BY DOWNLOADING, SIGNING UP, INSTALLING, ACCESSING OR USING THE SOFTWARE AND/OR SERVICES, YOU:

  1. AGREE THAT THIS AGREEMENT IS A LEGALLY BINDING AND VALID AGREEMENT;
  2. ACCEPT THIS AGREEMENT AND AGREE TO BE LEGALLY BE BOUND BY THE TERMS AND CONDITIONS SET FORTH HEREIN;
  3. REPRESENT AND WARRANT THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS BINDING AGREEMENT;
  4. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A CORPORATION, ORGANIZATION OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE CORPORATION, ORGANIZATION OR LEGAL ENTITY AND BIND IT TO THE TERMS SET FORTH HEREIN; AND
  5. TO TAKE ALL NECESSARY STEPS TO ENSURE THAT THE TERMS AND CONDITIONS OF THIS AGREEMENT ARE NOT VIOLATED BY YOU OR ANY PERSON OR ENTITY UNDER YOUR CONTROL OR IN YOUR SERVICE.

THIS AGREEMENT CONTAINS DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITY AND EXCLUSIVE REMEDIES. THE PROVISIONS BELOW FORM THE ESSENTIAL BASIS OF OUR AGREEMENT.

IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT CHECK ANY “I AGREE” BOX OR CLICK ANY “I AGREE” BUTTON TO AGREE TO THESE TERMS OF SERVICE (OR THE END USER LICENSE AGREEMENT PRESENTED WITHIN THE CORRESPONDING DOWNLOADABLE SOFTWARE APPLICATION), AND DO NOT DOWNLOAD, SIGN UP, INSTALL, ACCESS OR USE THE SOFTWARE AND/OR SERVICES.

 

CHANGES TO THIS AGREEMENT

We reserve the exclusive right to make changes to this Agreement from time to time.  Your continued access to and use of Our Software and/or Services constitutes Your agreement to be bound by, and Your acceptance of, the terms and conditions posted at such time. You acknowledge and agree that You accept this Agreement (and any amendments thereto) each time You sign into Your account, access, or use the Software and/or Services. Therefore, we encourage You to review this Agreement regularly.

If, within thirty (30) days of Us posting changes or amendments to this Agreement, You decide that You do not agree to the updated terms, You may withdraw Your acceptance to the amended terms by providing us with Notice of Your withdrawal (as set forth in Section 13 herein). Upon providing Us with the Notice of your acceptance withdrawal, You are no longer authorized to access or use the Software or Services, and You must not do so.

 

  1. DEFINITIONS

Affiliate” means any person or entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity.

Authorized Machines” means the specific Point-of-Sale devices owned, kept under control of, or used by the Customer, through its Authorized Users, with which the Software will be utilized.  The number and locations of Authorized Machines shall be set forth in the Order Schedule.

Authorized Users” means You and any individuals who are authorized by You to use the Software and/or Services, for whom subscriptions to the Software and/or Services have been ordered, and who have been supplied user identifications and passwords by You (or by Us at Your request). Authorized Users may include but are not limited to Your employees, consultants, contractors and agents, and third parties with which You transact business.

Beta Software” has the meaning set forth in Section 8(d) herein.

Claims Against Us” has the meaning set forth in Section 9(a) herein.

Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the total voting interests of the subject entity.

Data Storage Provider” has the meaning set forth in Section 11(a) herein.

Effective Date” is the date on which this Agreement takes effect, which is the earlier of i) the day on which the Order Schedule is completed and accepted by You; ii) the day on which You check a box or click an “I Accept” button to accept this Agreement; or iii) access your account.

Feedback” has the meaning set forth in Section 6(f) herein.

Fees” means the monetary amounts, in U.S. Dollars, to license the Software and utilize Our corresponding Services, including all taxes thereon, under this Agreement. The amount of Fees is made available to You when You signup, enter Your payment information, or may be set forth in an Order Schedule (or any schedule, amendment, or addendum thereto).

Force Majeure” has the meaning set forth in Section 11(c)(1) herein.

Free Trial” means the limited rights to access and use the Software and utilize certain Services that We may make available to You under this Agreement, that does not require Your payment of Fees.

Government” has the meaning set forth in Section 16(h) herein.

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. Intellectual Property Rights expressly includes any derivative works related to the Software.

Live Date” means the date on which You are granted access to the Software, and such Software is substantially functional and made available for Your use.

Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

Modifications” has the meaning set forth in Section 6(e) herein.

Notices” has the meaning set forth in Section 13(a) herein.

Order Schedule” means the documents, whether hardcopy or electronic, including addenda thereto, for placing orders for software subscriptions and/or services hereunder and that are entered into between You and Us or any of Our Affiliates (as applicable) from time to time. By entering into an Order Schedule hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Each Order Schedule shall be deemed incorporated herein by reference.

Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.

Purchased Software” means Software that You or Your Affiliates purchase in accordance with an Order Schedule.

Services”  has the meaning set forth in the preamble, and includes any software that may be offered or provided by Us as a service to You (on a software-as-a-service basis), including Software, whether such software is downloadable or not.

Software” has the meaning set forth in the preamble and expressly includes both downloadable and non-downloadable software applications.

Subscription” means the rights to use the Software and associated services granted to You, under license, in accordance with this Agreement for the duration of the Subscription Term.

Subscription Term” means the period of time during which this Agreement shall be in effect, unless renewed or earlier terminated pursuant to the terms of this Agreement.  The Subscription Term may be set forth in the Order Schedule.  If the Subscription Term is not expressly set forth in an Order Schedule, then the Subscription Term shall be deemed to coincide with Your payment schedule.

Supplier” means any third party provider of a software product, application or element that is incorporated into, or works in conjunction with, the Software or related service rendered by Us under this Agreement.

Third Party” means any Person other than You or Woolton.

Updates” has the meaning set forth in Section 3(g).

We,” “Us,” “Our,” or “Woolton” means has the meaning set forth in the preamble.

You” or “Your” means any individual (including yourself), firm, company or other legal entity for which You are accepting this Agreement, and Affiliates of that company or entity.

Your Data” means all data or information submitted by You, Your Authorized Users, or Your clients to or through the Software.

 

  1. SOFTWARE LICENSE GRANT AND SCOPE

Subject to Your compliance with all terms, conditions and restrictions set forth in this Agreement, We hereby grant to You a non-exclusive, non-transferable, non-sublicensable, revocable, limited license during the Subscription Term to access and use the Software, solely through Authorized Users, as follows:

    1. For all downloadable Software, You may download and install, in accordance with the Order Schedule, one (1) copy of the Software per Authorized User.
    2. Utilize the Software only in connection with an Authorized Machine.
    3. If the Software You requested is Purchased Software, then the license granted to You in this Section 2 is conditioned upon Your full and timely payment of all applicable Fees.
    4. This Agreement and any documents included herein by reference grant You a license to use the Software in accordance with this Agreement, but do not convey to You not any right, title, or interest in the Software.
    5. You agree not to reproduce, duplicate, copy, sell, resell or exploit access to the Software, use of the Software, or any portion of the Software, including, but not limited to the HTML, Cascading Style Sheet (“CSS”) or any visual design elements without the express written permission from Us.
    6. You agree not to modify, reverse engineer, adapt or otherwise tamper with the Software or modify another website so as to falsely imply that it is associated with the Software, with Us, or any other software or service provided by Us.
    7. You agree not to knowingly use the Software in any manner which may infringe upon Our Intellectual Property rights or the rights of any Third Party, or in any manner that is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or in violation of the terms of this Agreement.
    8. You further agree not to access the Software in order to i) build a competitive product or service, or ii) copy any features, functions or graphics of the Software.
    9. You agree not to use the Software or Services to upload, post, host, or transmit unsolicited bulk e-mail “Spam”, short message service “SMS” messages, viruses, self-replicating computer programs “Worms” or any Malicious Code.
    10. Except for the license granted pursuant to this Agreement, You acknowledge and agree that all ownership, license, Intellectual Property and other rights and interests in and to the Software shall remain solely with Us.
    11. We reserve the right at any time, and from time to time, to modify or discontinue, temporarily or permanently, any feature associated with the Software, with or without notice, except that We shall provide You with thirty (30) days notice of any modification that materially reduces the functionality of the Software. Continued use of the Software following any modification constitutes Your acceptance of the modification.
    12. We reserve the right to temporarily suspend access to the Software for operational purposes, including, but not limited to, maintenance, repairs or installation of upgrades, and will provide no less than two business days notice prior to any such suspension. Such notice shall be provided to You in advance through email. Further, We shall endeavor to confine planned operational suspensions with a best effort to minimize disruption to You.
    13. All of the terms, conditions and restrictions contained in this Agreement (except the payment terms set forth in Section 5 herein) shall fully apply to any Free Trial offered or provided to You and any Authorized Users.

 

  1. SOFTWARE PROVISION AND USE
    1. Free Trial of Software. If You sign up or register to receive access to the Software pursuant to a Free Trial, We will make one or more parts or modules of the Software available to You on a trial basis free of charge until the earlier of (i) the end of the Free Trial period for which You are given access to use the applicable Software module(s) and Services; or (ii) the beginning of the Subscription Term for any Purchased Software subscriptions ordered by You. All terms of this Agreement, excluding payment terms set forth in Section 5 herein, expressly apply to every Free Trial.  Additional terms for Free Trials may appear on the webpage related to such Free Trial, and any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.

ALL SOFTWARE AND SERVICES THAT WE MAY PROVIDE TO YOU PURSUANT TO A FREE TRIAL IS PROVIDED “AS IS”, WITH  NO WARRANTIES TO YOU WHATSOEVER.  ACCORDINGLY, FOR ANY FREE TRIAL, ANY AND ALL WARRANTIES ARE HEREBY DISCLAIMED.  ADDITIONAL WARRANTY INFORMATION APPLICABLE TO FREE TRIALS ARE SET FORTH IN SECTION 8(C)(IV) HEREIN.

DURING ANY FREE TRIAL PERIOD, WE EXPRESSLY RESERVE THE RIGHT TO SUSPEND OR TERMINATE YOUR ACCOUNT FOR ANY REASON AND WITHOUT NOTICE.  FURTHERMORE, WE ARE UNDER NO OBLIGATION WHATSOEVER TO STORE OR MAINTAIN YOUR DATA OR INFORMATION i) IF WE SUSPEND OR TERMINATE YOUR FREE TRIAL ACCOUNT, OR ii) AFTER THE CONCLUSION OR TERMINATION OF A FREE TRIAL PERIOD (UNLESS YOU PURCHASE A SUBSCRIPTION TO PURCHASED SOFTWARE AND SERVICES)

    1. Provision of Purchased Software. We shall make the Purchased Software available to You pursuant to this Agreement and, if applicable, the relevant Order Schedule(s) during a Subscription Term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.
    2. Our Responsibilities. We shall:
      1. Provide Our initial account setup and basic support for the Purchased Software to You at no additional charge, and/or upgraded support if purchased separately. Options and fees for upgraded or additional support will be set forth in the Order Schedule;
      2. Use commercially reasonable efforts to make the Purchased Software available 24 hours a day, 7 days a week, except for: (1) planned downtime (of which We shall give at least 8 hours notice and which We shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Friday to 3:00 a.m. Monday Eastern Standard Time); or (2) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), Internet service provider failures or delays, or denial of service attacks; and
      3. Provide the Purchased Software only in accordance with applicable laws and government regulations.
    3. Our Protection of Your Data. We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not:
      1. Disclose Your Data except as compelled by law in accordance with Section 7(c) or as expressly permitted by You; or
      2. Access Your Data except to make the Software available to You, provide Services to You, prevent or address service or technical problems, or at Your request in connection with customer support matters. By using Our Software, You agree that We may collect and use information from You and Your users as described in Our Privacy Policy. You also agree that We may use automated methods to analyze Your use of Our Software and Services.
    4. Your Responsibilities.
      1. You shall:
        1. Be responsible for Authorized Users’ compliance with this Agreement;
        2. Be responsible for the accuracy, quality and legality of Your Data and of the means by which You acquired Your Data;
        3. Use commercially reasonable efforts to prevent unauthorized access to or use of the Software and Services, and notify Us promptly of any such unauthorized access or use; and
        4. Use the Software and Services only in accordance with this Agreement and applicable laws and government regulations.
      2. You shall not:
        1. Make the Software available to anyone other than Authorized Users;
        2. Sell, resell, rent, sublicense or lease the Software;
        3. Use the Software to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights;
        4. Use the Software to store or transmit Malicious Code;
        5. Interfere with or disrupt the integrity or performance of the Software or third-party software or data contained therein; or
        6. Attempt to gain unauthorized access to the Software or their related systems or networks.
    5. Usage Limitations. Software and Services may be subject to other limitations, such as, for example, limits on disk storage space, limits on the number of requests that You are able to make and send, or on the number of calls You are permitted to make against Our application programming interface (if available, and as applicable). Information about any such limitations will be made available to You during the signup, account setup or account modification process, and/or set in the Order Schedule (or a schedule, amendment or addendum thereto).
    6. Updates. We may provide periodic updates, upgrades, bug fixes, patches and other error corrections (collectively, “Updates”) that We generally make available free of charge to all active subscribers to Purchased Software.  We may develop and provide Updates in Our sole discretion, and You agree that We have no obligation to develop any Updates at all or for particular issues, and expressly disclaims any liability for not doing so. You further acknowledge and agree that all Updates will be deemed Software, subject to all terms and conditions of this Agreement.

 

  1. THIRD PARTY MATERIALS
    1. The Software may include, incorporate, utilize or work with other software, tools, applications, content, data or other materials, including related documentation, that are owned by Persons other than Us and that are provided to You on licensee terms that are in addition to and/or different from those contained in this Agreement (“Third-Party Licenses”).
    2. A full list of Third Party Licenses may be provided upon Your reasonable request to Us. You agree to be bound by and comply with all Third-Party Licenses. Any breach by You or any of Your Authorized Users of any Third-Party License is also a breach of this Agreement.

 

  1. FEES AND PAYMENT FOR PURCHASED SOFTWARE
    1. Fees. You agree to promptly pay all Fees specified that are made available to You during the signup process, payment process, and/or presented on every Order Schedule that You accept. Except as otherwise specified herein or in an Order Schedule:
      1. Fees may be based on the Software or Services requested by You, Your actual usage, or both; and
      2. Payment obligations are non-cancelable and all Fees paid are non-refundable, including Fees paid in advance.
    2. Invoicing and Payment. You agree to provide Us with valid and updated credit card information on or along with a valid Order Schedule prior to receiving access to the Software. If You provide credit card information to Us, You authorize Us to charge such credit card for amount of Fees that correspond to the Software and Services You elected to purchase from Us, in accordance with the subscription plan and payment schedule that You requested and agreed to.  The Fees for Software and Services may be listed in an  Order Schedule for the initial Subscription Term and any Subscription renewal terms, as  detailed in Section 12(b). Such charges shall be made in advance, either annually or in accordance with any different billing frequency that You requested and agreed to (which may also be stated in an applicable Order Schedule). Unless otherwise stated in an Order Schedule, all invoiced charges are due on receipt. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
    3. Overdue Charges. If any charges are not received from You by the due date, then at all charges due and payable shall accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, beginning thirty (30) days from the date such payment is due until the date it is paid by You.
    4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our Software and/or Services is thirty (30) or more days overdue (or ten (10) or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend access to Our Software and/or Services to You until such amounts are paid in full. We will give You at least 7 days’ prior Notice that Your account is overdue, in accordance with Section 13(b), before suspending access to the Software and/or Services to You.
    5. Payment Disputes. We agree not to exercise Our rights under Section 5(c) or Section 5(d) if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
    6. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
    7. 60-Day Refund. As provided in Section 12(c) herein, You have the option to close Your account and terminate this Agreement within sixty (60) days of the Live Date, and request a refund of the Fees paid by You.  If You exercise this termination option, We will refund to You the full amount of the Fees You actually paid to Us during the period beginning with the Live Date and to the date of termination.  To obtain a refund in accordance with this Section 5(g), You must provide Us with Notice, as set forth in Section 13 before the end of the sixty (60) day refund period.  For any legal entity or organization, the date of the first user from the organization to be granted initial access to the Software and/or Services shall be used in calculating the sixty (60) day termination period hereunder.

 

  1. INTELLECTUAL PROPERTY RIGHTS
    1. Software Licensed. You acknowledge and agree that the Software and any materials and documentation associated therewith are provided to You under license, but are not sold to You.
    2. Limited Rights to Use Intellectual Property. You understand and agree that this is Agreement conveys a limited license to use Our Intellectual Property Rights, solely as part of the Software (and not independently of it), only as necessary to utilize the Software, only as it  relates to Your proper use of the Software in accordance with this Agreement, and only for the Subscription Term.  Accordingly, a breach of any term or condition of this Agreement shall also be considered an infringement of Our Intellectual Property Rights.  This shall not limit, however, any claim We may have for a breach of contract in the event You breach a term or condition of this Agreement.
    3. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Software, including all related Intellectual Property rights and any Feedback, additions, improvements or modifications thereto (whether created by You or Us) arising during the term of this Agreement or as a result of any other collaboration between You and Us (including Our respective personnel), all documentation relating to such additions, improvements or modifications, and all Intellectual Property rights associated therewith (including, without limitation, rights to technology and know‐how, whether or not patentable, copyrights, trademarks, and trade secrets). No rights are granted to You hereunder other than as expressly set forth herein.
    4. Standard of Care. You agree to use the highest commercially reasonable standard of care to safeguard the Software from infringement, misappropriation, theft, misuse or unauthorized access.
    5. Modifications to Software. You acknowledge and agree that all enhancements, changes or modifications (“Modifications”) to the Software are considered derivative works to the Software governed by copyright, patent and/or trade secret law. Accordingly, Modifications may not be made without Our express permission and We reserve the right to prevent the creation or restrict the use of the Modifications as unlicensed derivative works. You agree not to challenge Our rights to restrict any Modifications. You further agree that any Modifications made without prior permission from Us will be considered as an infringement of Our Intellectual Property Rights and a breach of the terms of this Agreement.
    6. Feedback. We value hearing from Our users and customers, and are always interested in learning about ways We can make Our Software better. We invite You to submit ideas, comments, recommendations, enhancement requests, suggestions for features or improvements, or  other feedback (collectively, the “Feedback”) regarding the Software.  You agree that We are free to use the Feedback without any restriction or compensation to You, but We are under no obligation to do so.  Ownership of all Feedback shall be solely and exclusively Ours.
    7. Assignment of Feedback. You agree to execute any necessary documents to formally assign Intellectual Property rights to the Feedback to Us, upon Our reasonable request and at Our sole expense.  Until a formal assignment agreement is executed, You grant Us an exclusive, non-limited, royalty-free, fully paid up, worldwide, irrevocable, perpetual license to use and incorporate into the Software any and all Feedback provided by You, and including any Authorized Users, relating to the operation of the Software.  We reserve the rights to file any patent applications, trademark or copyright registrations under Our name.  You agree that Your continued use of the Software is sufficient and valuable consideration for such transfer and assignment.
    8. Software Protected. The Software is protected (or subject to protection) by copyright, trademark, patent, trade secret, and other applicable laws of the United States and/or of other countries.
    9. Access by Competitors. You may not access or use the Software if You are Our direct competitor, except with Our prior written consent. You agree not share the Software with a direct competitor, except with Our prior written consent. In addition, You may not access the Software for purposes of monitoring Our availability, performance or functionality, or for any other benchmarking or competitive purposes.
    10. Reservation of Rights in Software. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Software, including all related Intellectual Property rights and any additions, improvements or modifications thereto (whether created by You or Us) arising during the term of this Agreement or as a result of any other collaboration between You and Us (including Our respective personnel), all documentation relating to such additions, improvements or modifications, and all Intellectual Property rights associated therewith (including, without limitation, rights to technology and know‐how, whether or not patentable, copyrights, trademarks, and trade secrets). No rights are granted to You hereunder other than as expressly set forth herein.
    11. Your Data. Subject to the limited rights granted by You hereunder, We acquire no right, title or interest from You or Authorized Users under this Agreement in or to Your Data, including any Intellectual Property rights therein.

 

  1. CONFIDENTIALITY
    1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.
      1. Your Confidential Information shall expressly include:
        1. Your Data;
        2. Information of and pertaining to, Your clients or customers; and
        3. Any information, files or data You provide to Us that is labeled as ‘CONFIDENTIAL’.
      2. Our Confidential Information shall expressly include:
        1. Information, files or data relating to the Software and/or Services;
        2. Order Schedules;
        3. Pricing information;
        4. Negotiated terms of this Agreement or any agreement or document incorporated herein; and
        5. Business and marketing plans, technology and technical information, documentation, plans, designs and business processes involving or relating to the Software and/or Services.
      3. Confidential Information shall NOT include any information that:
        1. Is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party;
        2. Was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party;
        3. Is received from a third party without knowledge of breach of any obligation owed to the Disclosing Party; or
        4. As independently developed by the Receiving Party without breaching the terms of this Agreement.
    2. Protection of Confidential Information. The Receiving Party shall use the same degree of care in protecting Confidential Information that it uses to protect the confidentiality of its own confidential information and proprietary materials (but in no event less than reasonable care):
      1. Not to use any Confidential Information of the Disclosing Party for any purpose other than in furthering the purpose of this Agreement; and
      2. Except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the additional or negotiated terms relating to this Agreement or any Order Schedule to any third party other than its Affiliates and their legal counsel and accountants.
    3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior written notice of at least ten (10) business days of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

 

  1. WARRANTIES AND DISCLAIMERS
    1. Our Warranties. We warrant that:
      1. We have validly entered into this Agreement and have the legal power to do so;
      2. The Software and Services provided or made accessible to You shall perform materially in accordance with this Agreement; and
      3. The functionality of the Software will not be materially decreased during a Subscription Term.
    2. Exclusive Remedy. For any breach of a warranty set forth in Section 8(a), Your sole exclusive remedy shall be termination, as provided in Section 12(d).
    3. Warranty Disclaimer. YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
      1. YOUR USE OF THE SOFTWARE AND ANY OF OUR ASSOCIATED SERVICES IS AT YOUR OWN RISK. THE SOFTWARE AND SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
      2. WE DO NOT WARRANT THAT (1) THE SOFTWARE AND SERVICE WILL MEET ALL OF YOUR REQUIREMENTS; (2) THE SOFTWARE AND SERVICE WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE; (3) ANY INFORMATION OR DATA GENERATED BY OR THROUGH THE USE OF THE SOFTWARE WILL BE ACCURATE OR ERROR-FREE; OR (4) THAT ERRORS IN THE SOFTWARE WILL BE CORRECTED IN ANY PRE-DEFINED TIMEFRAME.
      3. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM THE SOFTWARE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE
      4. FOR ANY FREE TRIAL, ANY DATA YOU ENTER DURING YOUR USE OF THE SOFTWARE DURING SUCH FREE TRIAL PERIOD, AND ANY CUSTOMIZATIONS MADE TO THE SOFTWARE FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SOFTWARE AS THOSE COVERED BY THE FREE TRIAL OR EXPORT SUCH DATA BEFORE THE END OF THE TRIAL PERIOD. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, DURING THE FREE TRIAL THE SOFTWARE IS PROVIDED “AS-IS” WITHOUT ANY WARRANTY WHATSOEVER.
    4. Beta Software. From time to time We may invite You to try, at no charge, Our products or Software that are not generally available to Our customers (“Beta Software”). You may accept or decline any such trial in Your sole discretion. Any Beta Software will be clearly designated as beta, pilot, limited release, developer preview, non-production or by a description of similar import.  Beta Software is provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. BETA SOFTWARE IS NOT CONSIDERED “SOFTWARE” HEREUNDER AND ARE PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY. We may discontinue Beta Software at any time in Our sole discretion and may never make them generally available.

 

  1. INDEMNIFICATION
    1. Indemnification. You agree to defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party (i) arising out of Your (or one of Your Authorized User’s) use of the Software in breach of this Agreement; or (ii) alleging that Your Data or use of the Software infringes or misappropriates the Intellectual Property rights of a third party has injured a third party or otherwise violates applicable law (a “Claim Against Us”), and You agree to indemnify Us for any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us; provided that We (y) promptly give You written notice of the Claim Against Us; and (z) provide to You all reasonable assistance, at Your expense.
    2. Exclusive Remedy. This Section 9 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.

 

  1. LIMITATION OF LIABILITY
    1. EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES. YOU EXPRESSLY UNDERSTAND AND AGREE THAT WOOLTON, ITS PARENTS, SUBSIDIARIES, AFFILIATES AND LICENSORS, AND OUR AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, AND AGENTS, SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, COVER, OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS OR ANTICIPATED PROFITS, LOSS OF GOODWILL, LOSS OF USE, LOSS OF DATA, BREACH OF PRIVACY, UNAUTHORIZED ACCESS TO YOUR DATA OR INFORMATION PARTIES, OR OTHER INTANGIBLE LOSSES (EVEN IF WOOLTON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM:
      1. YOUR DOWNLOADING, ACCESS OR USE, OR YOUR INABILITY TO ACCESS OR USE, THE SOFTWARE OR SERVICES;
      2. THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICE PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SOFTWARE;
      3. UNAUTHORIZED ACCESS TO OR THE LOSS, CORRUPTION OR ALTERATION OF YOUR TRANSMISSIONS, CONTENT OR DATA;
      4. STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR USING THE SOFTWARE AND SERVICE;
      5. YOUR ACTIONS OR OMISSIONS IN RELIANCE UPON YOUR ACCOUNT INFORMATION AND ANY CHANGES THERETO OR NOTICES RECEIVED THEREFROM;
      6. YOUR FAILURE TO PROTECT THE CONFIDENTIALITY OF ANY PASSWORDS OR ACCESS RIGHTS TO YOUR ACCOUNT INFORMATION TO SOFTWARE OR SERVICES;
      7. YOUR FAILURE TO SEND INFORMATION, REQUESTS OR NOTIFICATIONS TO THE CORRECT PARTIES;
      8. THE ACTS OR OMISSIONS OF ANY THIRD PARTY USING THE SOFTWARE OR SERVICES;
      9. THE ACTS OR OMISSIONS OF THIRD PARTIES, INCLUDING SUPPLIERS, THAT ARE BEYOND OUR REASONABLE CONTROL;
      10. ANY ADVERTISING CONTENT OR YOUR PURCHASE OR USE OF ANY ADVERTISED PRODUCT OR SERVICE;
      11. THE TERMINATION OF YOUR ACCOUNT AND DELETION OF YOUR DATA, FOR ANY REASON, DURING ANY FREE TRIAL PERIOD;
      12. THE TERMINATION OF YOUR ACCOUNT IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT; OR
      13. ANY OTHER MATTER RELATING TO THE SOFTWARE. NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THOSE LIMITATIONS IN SECTIONS DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY WHICH ARE LAWFUL IN YOUR JURISDICTION (IF ANY) WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
    2. IN NO EVENT SHALL WOOLTON’S LIABILITY WITH RESPECT TO ANY MATTER OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE LESSER OF $10,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT SHALL WOOLTON’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 5 (FEES AND PAYMENT FOR PURCHASED SOFTWARE). THIS LIMITATION OF LIABILITY DOES NOT APPLY TO INDEMNIFICATION CLAIMS UNDER SECTION 9(a).
    3. YOU AGREE TO WAIVE AND HOLD HARMLESS WOOLTON AND ITS AFFILIATES, LICENSORS AND SUPPLIERS FROM ANY CLAIMS RESULTING FROM ANY ACTIONS OR OMISSIONS OF THE FOREGOING PARTIES RELATING TO INVESTIGATIONS OR ACTS UNDERTAKEN BY LAW ENFORCEMENT AUTHORITIES.

 

  1. STORAGE OF DATA
    1. You acknowledge and agree that any data, including Your Data, that You, Your Authorized Users, Your clients or customers, or Third Parties may upload to, downloaded from, access via and send through the Software may be stored and managed by a third party that provides electronic storage, hosting, or data management services to Us (the “Data Storage Provider) to store, host and manage files or data, including Your Data.
    2. You acknowledge and agree that We do not directly store or host Your Data or other information that You uploaded to, download from, accessed via or send through, the Software or Services
    3. WE EXPRESSLY DISCLAIM ANY LIABILITY FOR ANY SOFTWARE UNAVAILABILITY OR DOWNTIME, BREACH OF PRIVACY, UNAUTHORIZED ACCESS OF YOUR DATA OR INFORMATION BY THIRD PARTIES, OR LOSS OF DATA CAUSED BY CIRCUMSTANCES BEYOND OUR CONTROL, INCLUDING WITHOUT LIMITATION:
      1. Actions or omissions of third parties, act of God (such as, but not limited to, fires, explosions, earthquakes, drought, tidal waves and floods); war, hostilities (whether war be declared or not), invasion, act of foreign enemies, mobilization, requisition, or embargo; rebellion, revolution, insurrection, or military or usurped power, or civil war; contamination by radioactivity from any nuclear fuel, or from any nuclear waste from the combustion of nuclear fuel, radio-active toxic explosive, or other hazardous properties of any explosive nuclear assembly or nuclear component of such assembly; riot, commotion, strikes, go slows, lock outs or disorder; acts or threats of terrorism; or other events of force majeure (the “Force Majeure);
      2. General Internet outages, failure of Data Storage Provider’s infrastructure or connectivity, computer and telecommunications failures and delays not within the Company’s control;
      3. Any actions or failures to act, failure of infrastructure or connectivity, or events of Force Majeure of, by or involving a Data Storage Provider; and
      4. Network intrusions or denial-of-service attacks of a Data Storage Provider or any of its systems or equipment.

 

  1. TERM AND TERMINATION
    1. Term of Agreement. This Agreement commences on the Effective Date and continues until the license granted to You hereunder expires or terminates in accordance with this Agreement.
    2. Term of Subscription. The Subscription purchased by You commences on the Effective Date and continues for the Subscription Term specified therein. Except as otherwise specified in the applicable Order Schedule, Your Subscription shall automatically renew for additional periods equal to the expiring Subscription Term or one year (whichever is shorter), unless either party gives the other written notice of non-renewal at least thirty  (30) days before the end of the relevant Subscription Term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless We have given You written notice of a pricing increase at least thirty (30) days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.
    3. 60-Day Termination. If, within sixty (60) days of Live Date, You are unsatisfied with any Paid Software or Services for any reason, You may terminate Your subscription to the Software and Services.  For any legal entity or organization, the date of the first user from the organization to be granted initial access to the Software and/or Services shall be used in calculating the sixty (60) day termination period hereunder.  If You exercise the option to terminate provided to You herein, You must immediately stop accessing the Software and using the Services, and You must instruct all of Your Authorized Users to stop accessing and using the same.  Upon exercising the sixty (60) day termination hereunder, You will be entitled to a full refund of the Fees that You have actually paid to Us during that sixty (60) day period, as further set forth in Section 5(g).  If You do not exercise the option to close Your account and terminate this Agreement within sixty (60) days of the Live Date, You may only terminate this Agreement as set forth in Section 12(d) herin.
    4.  Termination
      1. You may terminate this Agreement:
        1. Upon providing Us with Notice of Our material breach of this Agreement, and such breach is not cured by Us within thirty (30) calendar days; or
        2. If We become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
      2. We may terminate this Agreement:
        1. Due to Your non-payment of the agreed upon fees set forth in the Order Schedule;
        2. At any time if, in Our discretion, You are in violation of any term of this Agreement or other document incorporated herein; or
        3. If You become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
    5. Surviving Provisions. Certain provisions of this Agreement shall survive the conclusion, expiration, non-renewal or termination of this Agreement for any reason, including but not limited to: Section 4-11 and Sections 13-16.

 

  1. NOTICES
    1. Notice. Any and all notices (“Notices”) to Us shall be sent to: (if by mail) Woolton, Inc. 8950 SW 74th Court, Suite 1601, Miami, FL 33156, USA; (if by email) info@woolton.com Any and all Notices to You shall be sent to the designated primary email address that You provide to Us, or, if applicable, to Your mailing address set forth on the Order Schedule.
    2. Manner of Giving Notices. Except as otherwise specified in this Agreement, all Notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon:
      1. Personal delivery;
      2. The fifth business day after mailing via United States Postal Service;
      3. The second business day after sending by confirmed facsimile, with proof of delivery; or
      4. The first business day after sending by email (with proof of delivery and confirmation of receipt).
    3. Notices to You. Billing-related Notices to You shall be addressed to the relevant billing contact designated by You via email. All other Notices to You shall be addressed to the relevant Software system administrator designated by You.

 

  1. DISPUTE RESOLUTION
    1. Arbitration. You acknowledge and agree that any controversy or claim arising out of, or in any way related to, this Agreement, will be settled by exclusively by binding arbitration, before a single arbitrator, in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitration will take place in Miami-Dade County, Florida (or another location mutually agreed upon by the parties).  The arbitration award will be valid and binding upon the parties, and judgment thereon may be entered and enforced as a final judgment in any court with competent jurisdiction.
    2. Claims for Equitable Relief. Claims by Woolton for injunctive relief or other equitable relief may be filed in the state or federal courts of Florida (or any other jurisdiction selected by Us for such action) for an order effective until the conclusion of arbitration and enforcement of the arbitration award, and such claims may be filed without a good faith attempt to resolve the issues underlying such claims.

 

  1. GOVERNING LAW; JURISDICTION
    1. Governing Law. This Agreement shall be governed by and construed solely and exclusively in accordance with the laws of the State of Florida without regard to its conflicts of law provisions thereof.
    2. Jurisdiction and Venue. In the event of legal suit, action or proceeding, arising out of, or related to this Agreement and that must take place in court of law, the parties consent to the exclusive jurisdiction of federal courts of the United States or the courts of the State of Florida, in each case located in the City of Miami and/or County of Miami-Dade.  We retain the rights to bring any suit, action or proceeding against You for breach of this Agreement.  For clarity, this Section 15(b) is in no way intended to replace the Arbitration provision contained in this Agreement, which is the preferred method of dispute resolution among and between the parties.
    3. Waiver of Jury Trial. In the event of a legal suit, action or proceeding that must take place in a court of law, each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.  For clarity, this Section 15(c) is in no way intended to replace the Arbitration provision contained in this Agreement, which is the preferred method of dispute resolution among and between the parties.

 

  1. GENERAL PROVISIONS
    1. Export Administration. Customer acknowledges that the Software may be subject to export controls under applicable export control regulations, and agrees to comply with any such regulations.
    2. Relationship of the Parties. The parties are independent contracting persons or entities. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
    3. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
    4. No Waiver. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
    5. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
    6. Attorney Fees. You agree to pay, on demand, all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due to Us under this Agreement following Your breach of Section 5(b) and/or Section(6) and/or Section 9(a)
    7. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Schedules), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, We shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
    8. U.S. Government Restricted Rights. If the Software is licensed by or on behalf of a unit or agency of the United States Government (the “Government”), the Government agrees that such Software and Documentation is “commercial computer software” and “commercial computer software documentation”, respectively, and that absent a written agreement to the contrary, the Government’s rights with respect to such Software and Documentation are, in the case of civilian agency use, RESTRICTED RIGHTS, as defined in FAR §52.227-19, and if for the Department of Defense use, limited by the terms of this Agreement, pursuant to DFARS §227.7202-1 through §227.7202-4 as applicable. The use of the Software by the Government constitutes acknowledgment of Our proprietary rights in the Software and Documentation.  The contractor/manufacturer is Woolton, Inc. 8950 SW 74th Court, Suite 1204, Miami, FL 33156.
    9. Equitable Relief. The parties acknowledge and agree that Your breach of this Agreement would cause Us irreparable harm for which money damages alone would be inadequate. In addition to damages and any other remedies to which We may be entitled, You acknowledge and agrees that We may seek injunctive relief to prevent the actual, threatened or continued breach of this Agreement.
    10. Entire Agreement. This Agreement, including, Authorized User Terms of Use, all exhibits and addenda hereto and all Order Schedules, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Neither party is relying on any promise or representation in entering into this Agreement other than those set forth in this Agreement.
    11. Modification. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing (made for the purpose of modification, amendment or waiver) and is signed by the party against whom the modification, amendment or waiver is to be asserted.
    12. Inconsistency. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Order Schedule, the terms of such Order Schedule shall prevail.
    13. Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
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