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Terms and Conditions

THE CUSTOMER CLUB TERMS AND CONDITIONS

 

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Welcome to The Customer Club Solution, a cloud-based software as a service platform and related services and features (the “Solution”) that allows you, as the User to easily collect the personal information of your existing and prospective customers (each a “Contact”), communicate with them and manage certain marketing functions for your business from a single hub. These Terms and Conditions, The Customer Club Acceptable Use Policy, your Order, and The Customer Club Privacy Policy makes up the agreement between you and us regarding your purchase and use of Solution (as such documents may be amended from time to time as provided herein and therein (individually, the “Agreement” and collectively, the “Agreements”). By purchasing the Solution, creating, and registering for a Customer Club account (an “Account”), and/or using any features of the Solution or website, you are acknowledging that you have read, understand, and agree to be bound by the Agreements.

 

Changes to any part of any of the Agreements will be posted online in advance of their respective effective date, and any such changes will apply to you thereafter if you continue to use the Solution. The Solution is only intended for use by companies located in the United States of America and only with your United States based Contacts. You represent as follows: you have the authority to enter into this Agreement, are the age of majority in the state in which you reside, are an authorized representative of a business entity authorized to conduct business in the each of the US states in which you operate, that you will not use Solution with/for any non-US based Contacts, and that your business is not engaged in marketing or providing services of an “adult” nature, pharmaceuticals, marijuana-related products or services, gambling, guns/firearms-related services or other services that are prohibited by our Acceptable Use Policy.

 

1. DEFINITIONS

In addition to the terms defined elsewhere in the Agreements, capitalized terms used in these Terms and Conditions have the meaning set out below:
 

  • “Acceptable Use Policy” shall mean the Customer Club Acceptable Use Policy located at www.thecustomerclub.io/acceptableusepolicy

  • “Authorized User” means User’s employees, consultants, contractors, or agents that have (i) been assigned Credentials to access and use User’s Account, (ii) registered to access your Account, and (iii) agreed to comply with the terms and conditions of the Agreements.

  • “Business Day” means a day on which banks are generally open for business in Cincinnati, Ohio.

  • “Company” means The Customer Club, LLC, an Ohio limited liability company.

  • “Confidential Information” means any information of a non-public, confidential or proprietary nature, whether of commercial, financial or technical nature, customer-, supplier-, product- or production-related or otherwise, including samples, information and specifications relating to the Solution, Solution-related services and features, patent applications, process designs, process models, materials and ideas, disclosed by the Company to the User. Such information may be disclosed in any form.

  • “Contact” means a third party, whose personal information is in the possession of a Customer, for the purpose of the Customer marketing goods and services to such individual.

  • “Control” means the power, factual or by law, to exercise a decisive influence on the designation of the majority of the directors of a company, or on its management. Notably, there is legal control when it results from the possession of the majority of the voting rights linked to the shares or interests of the controlled company.

  • “Credentials” means the user identification and password to the Account delivered by Company or set up by User via User’s Account.

  • “Intellectual Property Rights” means any intellectual property rights, including copyrights, trade and service marks, trade names, rights in logos and get-up, inventions, Confidential Information, trade secrets and Know-How, registered designs, design rights, patents, utility models, all rights of whatsoever nature in computer software and data, all intangible rights and privileges of nature similar or allied to any of the foregoing, in every case in any part of the world and whether or not registered; and including all granted registrations and all applications for registration, all renewals, reversions or extensions, the right to sue for damages for past infringement and all forms of protection of a similar nature which may subsist anywhere in the world.

  • “Interaction” is a singular event that occurs when (i) a coupon (or “e-Smart Mobile Offer” or Customer Club branded communication) is opened by your Contact through web view or API, or (ii) you otherwise award loyalty “points” or “stamps” to your Contact.

  • “Know-How” means any information relating to commercial, scientific, and technical matters, inventions, and trade secrets, including but not limited to any patentable technical or other information which is not in the public domain including information comprising or relating to concepts, discoveries, data, designs, formulae, ideas, reports, and data analyses.

  • “Party” means individually the User or the Company, and “Parties” means the Company and User collectively.

  • “Privacy Policy” means The Customer Club Privacy Policy located at www.thecustomerclub.io/privacy

  • “Solution” means the cloud-based software as a service (“SaaS”) platform and its related services and features that allow User to (i) collect User’s Contact information, (ii) communicate with the Contacts, and (iii) distribute, validating and use of digital coupons. 

  • “Subscription Period” is the amount of time the Solution is made available for User’s use, which are six-month calendar increments, which may automatically renew and run consecutively; provided that we reserve the right, but do not assume any obligation, to provide subscriptions for periods of time as further described in a Customer’s Order.

  • “Taxes” any sales tax, income tax, consumption tax or any other similar tax, duty, fee, levy or other governmental charge.

  • “User” means an individual or entity entered as the Account owner during the Account registration, which may also be referred to as “you” or “your.”

  • “We”, “us”, and “our” means The Customer Club, LLC, an Ohio limited liability company, which is also referred to herein as the “Company.”

  • “You” or Your” means the User.

 

2. GRANT OF LIMITED RIGHT 

In consideration of timely payment by the User to the Company of the applicable Subscription Fee in accordance with the terms and conditions of the Agreements, the Company grants to the User, and the User accepts from the Company, a non-exclusive, non-transferable, limited right to use the Solution for communicating with your customers, managing certain marketing tactics, including the creation, distribution, validating and use of digital coupons. Your limited rights under the Agreements are expressly limited to the Subscription Period /Term (subject to renewal) referenced in your Order.  For the avoidance of doubt, the license granted under this Section 2 shall not include any modifications or upgrades of any kind to the Solution made by the Company.  The User acknowledges and agrees that all Intellectual Property Rights and Know-How related to the Solution are and shall remain the Company's property. Unless otherwise agreed upon in writing by Company and User between the Parties, as between the Company and User, the Company shall own any Intellectual Property Rights in any enhancements or modifications made to the Solution or its related services or features.

 

3. INTERACTIONS AND REQUIRED FUNCTIONALITY

Except as set forth in your Order, Subscription Fees are calculated based on the number of Interactions per month purchased by the User. “Interactions” are available for purchase in increments of 20,000/ 40,000/ 60,000/ 80,000 and 100,000 Interactions per calendar month or other increments which are expressly set forth and specified in your order. Each time a Customer’s Contact opens a coupon, the Customer will be charged with one (1) Interaction. Similarly, if a Customer awards loyalty “points” or “stamps” to its Contact for any reason, each grant of points or stamps constitutes one (1) Interaction. The refreshing of a web page once or multiple times will only be considered one (1) User Interaction. A bot (e.g.- Google crawler, Facebook crawler, etc.) “visiting” your coupon offering does not constitute an Interaction. Unless expressly set forth in your Order, the number of Interactions available to you in a calendar month will automatically reset on the first day of each calendar month, and any unused Interaction credits remaining at the end of the applicable calendar month will be irrevocably lost. We do not provide any credit or refunds  to you for any unused or unredeemed Interactions.

 

During any Subscription Period, a User may purchase additional Interactions per month for the then current cost of additional Interactions. In the event that a Customer elects to reduce the number of Interactions for the remaining portion of the then current Subscription Period, Customer shall be charged a one-time two hundred and fifty dollar ($250) service and processing fee.

 

In the event that your Account incurs Interactions in any calendar month during the Subscription Period in excess of the previously purchased number of Interactions for such calendar month as specified in your Order, we will charge you fifteen cents per Interaction above the original number of Interactions purchased. Solely for purposes of illustration, if a Customer purchased 20,000 Interactions per month, but actually used 22,250 Interactions in one of the calendar months within the designated Subscription Period, the Customer Club would assess a one-time supplemental charge of $337.50 for the additional 2250 Interactions used during the one month of the Subscription Period.

 

Reminder - In order to use certain features of the Solution, you will need to have continuous access to an active email and /or SMS service provider (such as Constant Contact or MailChimp or a SMS provider such as Twilio).

 

4. THIRD-PARTY PROVIDERS

Within your Account you may be provided access to third-party technology providers, which are an offering of applications and services that may be of interest or use to you. The applications are provided by third-party developers, companies, or distributors (each a “Third-Party Provider”). When you link out from the Third-Party Provider site, you agree that your business information will be passed to that Third-Party Provider’s site for the purpose of facilitating a transaction with that Third-Party Provider.

 

Your purchase, download, or use of any Third-Party Provider applications is governed by such Third-Party Provider’s terms and conditions and privacy policy, as applicable. Additionally, we may include the capability for you, at your sole discretion, to integrate a Third-Party Provider application with or into your Account. If you exercise this integration option, you hereby authorize us to integrate such Third-Party Provider application with your Account to facilitate the sharing of certain Client Content (defined below) from your Account to your Third-Party Provider account, and the integration of Client Content from your Third-Party Provider account to your Account. You acknowledge and agree as follows: (i) Third-Party Providers will have access designated by you to your Client Content and that it is your sole responsibility to evaluate any risks related to your sharing of Client Content with Third-Party Providers; (ii) we have no control over, and—to the maximum extent permitted by applicable Laws—will have no liability for, any acts or omissions of any Third-Party Provider with respect to your sharing of Client Content, and (iii) we may use our third-party vendors to facilitate the transmission of Client Content as contemplated herein. To the maximum extent permitted by applicable Laws, we disclaim all liability for the functionality of any Third-Party Provider applications and, unless otherwise expressly provided, for their interoperability with the Solution.

 

5. TERM/ AUTO RENEWAL/SUBSCRIPTION FEE ADJUSTMENT  

Users will  be required to purchase Interactions, which will expire and be irrevocably lost if not used prior to the end of each calendar month during the applicable Subscription Period.

 

Unless otherwise specified and agreed to in writing by us at the time of your purchase or upgrade, your initial Subscription Fee will be prorated for any partial calendar month and will thereafter extend for six (6) full calendar months. All subsequent Subscriptions will automatically renew for an additional six (6) calendar month/180-day Subscription Period unless you provide written notice of termination at least twenty (20) days before the end of the then current Subscription Period. We reserve the right to periodically adjust the Subscription Fee for future Subscription Periods by providing written notice of such changes to the Subscription Fee or other charges at least 30 days prior to the commencement of the next Subscription Period.

 

6. CANCELLATION/TERMINATION/SUSPENSION 

All notices to “terminate” your subscription (“Termination”) must be provided in writing at least twenty (20) days prior to the beginning of your next Subscription Period. Termination requests must be submitted to support@thecustomerclub.io. Terminations will be effective upon the expiration of the current Subscription Period, provided your Termination notice is received at least twenty (20) days prior to the end of the Subscription Period. Except as expressly provided herein, no refunds will be provided.

 

We reserve the right to terminate or suspend your Account for “cause” upon our written notice to you regarding the occurrence of any one or more of the following for “cause” events: (i) your non-payment of any Subscription Fees or other charges; (ii) a change in Control of User; (iii) your’s or any of your Authorized Users’ breach of any of the terms and conditions of any of the Agreements, or (iv) User files for protection under the US Bankruptcy Code, becomes subject to a petition for involuntary bankruptcy which is not dismissed within 60 days, otherwise becomes insolvent (i.e. becomes unable to pay its debts in the ordinary course of business as they come due), or makes an assignment for the benefit of creditors under applicable state laws.

 

If your credit card is declined, we provide you ten (10) calendar days to remedy this issue and provide proper payment. Thereafter, we may suspend your Account and your access to the Solution until payment is received, and you remain responsible for all accrued charges. The Company also reserves the right, in its discretion, to terminate your Account and cancel your access to the Solution for convenience, provided that in the event of such cancellation for convenience, the Company shall promptly refund any purchased, current but unused Interactions at the price originally paid by you.

 

If your Account is terminated, for any reason, you agree as follows : (i) all rights granted to you under the Agreements immediately revert to Company and User right to access and use the Solution(s) immediately ends; (ii) except as expressly provide herein, all unpaid Subscription Fees and related charges shall become immediately due and payable; (iii)  you continue to be bound by the terms of the Agreements that survive termination, as applicable; and (iv) you will immediately stop accessing or using the Solution. Termination of this Agreement for any reason shall not release any Party hereto from any obligation which, at the time of such termination, has already accrued and become due to the other Party or which is attributable to a period prior to such termination, nor shall such termination preclude either Party from pursuing any rights and remedies it may have hereunder or at Law or in equity with respect to any breach of any of the Agreements, including these Terms and Conditions.  Further, if your Account is terminated, you agree that we may, but are not required to, keep your information and Account data (including Contact Data) stored on our servers. You acknowledge and agree, that, to the maximum extent permitted by applicable Laws, we are not liable to you or any third party for termination or suspension of access to your Account, the Solution, or for deletion of your information (including coupons designed by you and /or developed by the Company or its agents) or any other Contact related data.

 

7. CHARGES/BILLING

You agree to pay the Subscription Fee and any one-time or other recurring charges listed on your Order and on any subsequent invoice. You also agree to be responsible for any taxes due associated with such Subscription Fee or related charges. The rates specified for the use of the Solution do not include any extra charges that may apply for additional services that you elect, including separate charges that may apply for optional applications, services or features provided by Third Party Providers, such as third-party applications that integrate with the Solutions, except as otherwise provided in your Order. You agree to pay for any such applications, services or features that you use or request at our standard rates or the Third-Party Provider’s specified rates.

 

8. PAYMENT TERMS/ RECURRING AUTO PAY

ALL SUBSCRIPTIONS MUST BE SECURED BY A CREDIT CARD, DEBIT CARD OR BANK ACCOUNT NUMBER. YOU AUTHORIZE US TO CHARGE THE CARD OR ACCOUNT AUTOMATICALLY AT THE START OF EACH BILLING PERIOD FOR THE AMOUNT OF YOUR MONTHLY OR SEMI- ANNUAL RECURRING CHARGES FOR THE SOLUTION, PLUS APPLICABLE TAXES, AND LESS ANY ACCOUNT CREDITS, UNTIL YOU NOTIFY US TO CANCEL AUTOMATICALLY RECURRING PAYMENTS IN ACCORDANCE WITH THIS AGREEMENT. It is your responsibility to keep your payment method information current. You agree that your authorization for recurring payments will continue for any replacement payment information provided by you or the financial institution that provides your payment card, to the extent you have consented to have your financial institution auto-update your payment card information for recurring payees. Fees are due and payable, in advance, either monthly (or each 30 days) or semi-annually (or each 180 days) (depending on which payment plan you elected at purchase), on the dates that are noted on your Order or invoice. You agree to pay the applicable Subscription Fee and all related charges in full by the billing due date. We will assess, and you agree to pay, late charges on balances not paid by the due date. Late charges will begin to accrue after the due date at a rate equal to the lesser of 1.5% per month or the highest lawful rate. You may not withhold any payment for any reason. We may apply or offset payments from you, or monies owed to you, toward amounts owed under the Agreement or any other amounts you owe us.

 

9. PERMITTED USAGE AND RIGHTS OF ACCESS 

We grant you and your Authorized Users a non-exclusive, non-transferrable, limited, and revocable right to access and use the Solution solely through your valid Account(s), subject in all cases to the terms and limitations of the Agreement and any related documentation provided to you about the Solution. You agree that neither you nor any of your Authorized Users have any right in or to the Solution, other than those specifically granted in this Section 9.

 

Without limiting the generality of the foregoing, you agree to not use or attempt to use the Solution for any purpose other than managing the creation, distribution, validation of coupons or loyalty solutions for your business. User specifically agrees that neither User nor any Authorized User shall : (i) modify, improve, reverse engineer, decompile, disassemble, copy, merge, reroute or create derivative works of or in the Solution; (ii) sell, resell, lend, loan, lease, license, sublicense or transfer any of your rights to access or use the Solution, including, without limitation, providing outsourcing, service bureau, hosting, application service provider or on-line services to third parties, or otherwise make the Solution, or access thereto, available to any third party; (iii) use, display, mirror, frame or utilize framing techniques to enclose the Solution, or any individual element or materials within the Solution, “The Customer Club” name, any of Company’s trademarks, logos or other proprietary information, the content of any text or the layout and design of any page or form contained on a page, without our express written consent; (iv) use the Solution to build a competitive product or offering, or other service that substantially replicates any features of the Solution; (v) make the Solution, or any materials or content provided hereunder, available in any manner to any third party for use in the third party’s business operations; (vi) prevent us from tracking Interactions or otherwise causes the information resulting from the tracking of the  Interactions to be incorrect or invalid; (vi) perform or disclose to any third party any benchmarks, evaluations, performance tests, or competitive analysis of the Solution (including uptime, response time, or other indicators), without our prior written consent; or (vii) encourage or enable any third party to do any of the foregoing.

 

You acknowledge and agree that you or your Authorized Users are responsible for the prior review and approval of all advertisements, promotions, coupons ,or loyalty solutions posted to your Account. If the Company is asked to assist in the design of any coupon, loyalty solution, or promotion, you or your Authorized User shall be responsible for the review and approval of same prior to its transmission to your Contacts. In the event of an error on the part of the Company or its employees, agents, or representatives in the creation of the coupon, loyalty solution, or promotion, the Company’s aggregate liability arising from or in connection with such error shall be solely limited to the creation of a new coupon, loyalty solution, or promotion.

 

You further agree to not allow non-Authorized Users to use your Account or Credentials to access or use the Solution under any circumstances. You hereby grant the Company and its Third-Party Providers specific permission to provide, administer, monitor, track and access your Account for any administrative or other purposes we deem appropriate. You acknowledge and agree that certain features within the Solution may allow us to monitor yours and your Authorized Users’ respective Account activity, including, but not limited to, correspondence with each other and with your Contacts. You bear full responsibility for informing and obtaining the consent and permission, as necessary per applicable federal, state, and local laws, of any person (including any Authorized User) who uses User’s Account that such activities may be monitored. You acknowledge that you may be required to certify in writing, and provide periodic updates of, your compliance with any consent requirements regarding those who use your Account.

 

10. SECURITY OF PASSWORDS/ACCOUNT TRANSACTIONS

You are solely responsible for maintaining the confidentiality of your Account passwords and any related Credentials, including those for Authorized Users and for any charges, damages, liabilities, or losses incurred due to your compromise of such Account Credentials. You are responsible for all acts and omissions on your Account and through use of the related Credentials. You agree that the conduct of any user on your Account in clicking on any on-screen buttons, purchasing any upgrades, or engaging in any other similar conduct, will be legally sufficient for all purposes to bind you to the same extent as though evidenced by your original signature. You waive all claims or defenses that are inconsistent with the foregoing acknowledgements. You agree to immediately notify us of any unauthorized use of your Account or any other breach of security known to or suspected by you. We may revoke your Credentials or deny you access to any administrative or other functionality, in whole or in part, at any time in our sole discretion, but especially if we detect or suspect any threat to the security or integrity of the Solution or Platform associated with User’s Account or a violation of the Acceptable Use Policy.

 

11. OPERATIONAL LIMITS AND CHANGES 

You acknowledge that the Solution may be subject to limitations imposed by applicable Laws or the policies of Third-Party Providers that we do not control, and that these limitations may restrict or limit the availability of certain services and features for certain types of businesses. You understand that any information or data provided by you to us may not be processed on a real-time basis and may be subject to the latency of the Internet, the Company’s systems, Third-Party Provider networks and sites. In addition, you acknowledge that wireless carriers may implement changes that delay or prohibit our provision of the Solution. To the maximum extent permitted by applicable Law, Company and our service providers will not be responsible or liable for delays, changes in services or features, or non-delivery of the services caused by wireless carriers, third-party networks, third-party suppliers, internet providers, or search engines. You acknowledge that the operation of the Solution, and individual features of the Solution may, from time to time, be altered, encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors. We will not be responsible to any User or any third party for any such interruptions, changes, loss of data, errors or problems or an outright discontinuance of the Company, Solution, or any related services or features. We will use commercially reasonable efforts to keep the Solution operational 24 hours a day/7 days a week, except for: (i) planned downtime; or (ii) any unavailability caused by circumstances beyond our control, including but not limited to, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, third party service provider failures or delays, or Internet or utility service provider failures or delays.

 

12. USER’S PRIVACY POLICY 

You acknowledge receipt of (i) the Customer Club Privacy Policy, which sets forth our privacy related policies with respect to you and our other Customers, and (ii) the Customer Club “Customer Contact Notice”, which provides an overview of how we handle your’s and other Customer’s Contact Data. 

 

You agree that you are solely responsible for the collection of personal information of your current and prospective Contacts and for your compliance with applicable privacy and data protection Laws. You agree to maintain a prominent link to your online privacy policy on your website to which you will direct your Contacts (or otherwise detail your policy in the coupon’s terms of use to the extent permitted by applicable Law), and you agree to ensure that your privacy policy and terms of use comply with the Agreements and all applicable Laws, as such may be amended from time to time.  You acknowledge and agree that we may include a “Powered by Customer Club” legend/link to our Privacy Policy on the bottom of each coupon.

 

13. COMPLYING WITH THE LAW 

You acknowledge and agree that your usage of the Solution (and User’s Authorized Users and such persons’ usage of the Solution) must comply with all Laws applicable to your business, business type and your business’s location. This includes, but is not limited to, the Telemarketing and Consumer Fraud & Abuse Prevention Act, Telephone Consumer Protection Act of 1991 (TCPA), the Americans with Disabilities Act (ADA), The Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM), and the California Consumer Privacy Act of 2018 (CCPA), as applicable, as well as other relevant laws and regulations governing your activities in marketing, advertising, communications, and data collection and use.

 

You agree not to use the Solution for the posting or sending of, nor include or reference any domain name(s) or URL(s) associated with your messaging in, unsolicited commercial advertising, email, information, announcements, texts or other messages or any other unsolicited distribution commonly considered to be “Spam.” We assume no obligation whatsoever to attempt to detect, manage, and eliminate Spam generated from your use of the Solution. We discourage the use of the Solution to upload, communicate, store or solicit any sensitive personal data, including without limitation financial account information, social security numbers, driver’s license or government ID numbers, or private health information. While we use commercially reasonable efforts to provide an industry-standard level of protection for your data stored and messages transmitted through the Solution, you understand that the is an internet-based, hosted SaaS, and you acknowledge that no server or internet connection can be guaranteed to be completely secure. Thus, you agree to be responsible for any use by you (or under your Account) of the Solution, to upload, communicate, store or solicit any sensitive personal data, and to the maximum extent permitted by applicable Law. 

 

You acknowledge that the Solution is not intended to be compliant with the Health Insurance Portability and Accountability Act (HIPAA) and is not intended to be used to communicate or store “protected health information.” Accordingly, if you solicit, upload, or share any protected health information via the Solution, you do so without our knowledge or consent and at your sole risk. 

 

14. OUR RIGHTS AND REMEDIES

If you or your affiliates do not pay all Subscription Fees and related charges within ten (10) days after the due date, fail to meet any other obligation under this Agreement or under any other agreement between you and the Company , or make any Client Representation (defined below) or warranty that is or becomes untrue, we may, without notice: (i) require you to pay immediately all unpaid amounts you owe and will owe for your Account; (ii) remove, suspend, or modify your Account access; (iii) suspend or terminate your Account without liability; (iv) recover all collection costs and related attorneys’ fees; and (vi) pursue any other available legal or equitable remedies.

 

If we receive notice from another party contesting your right to use or display a name, trademark, service mark or other content, in addition to the remedies above, we may, without liability to you, cancel or suspend your Account and/or the Solution until you have resolved the dispute with the other party to our satisfaction. Company may also remove the disputed content immediately. We reserve the right to change any content you submit via the Solution to conform to Company’s standards, practices and policies or the policies of any third party on whose site, platform or network on which such content is published.

 

15. FEEDBACK

Any questions, comments, suggestions, ideas, original or creative materials or other information you provide about The Customer Club LLC, the Solution or any other of our products or services (collectively, “Feedback”), is non-confidential and will become our sole property. We own exclusive rights, including, without limitation, all intellectual property rights, in and to Feedback and will be entitled to the unrestricted use and dissemination of Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.

 

16. NOTICES/ HOW TO CONTACT US

All notices must be in writing and sent by sending an email to us at support@thecustomerclub.io. Cancellation or Termination notices must be sent to support@thecustomerclub.io and must include your business name, telephone number and address.


17. LIMITATION OF LIABILITIES/DISCLAIMERS

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY SHALL HAVE NO LIABILITY WITH RESPECT TO SOLUTION OR ANY SERVICES OR FEATURES PROVIDED TO YOU OR YOUR CONTACTS. THE SOLUTION IS PROVIDED ON AN “AS IS” AND “AS-AVAILABLE” BASIS. THE COMPANY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND WHATSOEVER, WHETHER EXPRESS OR IMPLIED OR ARISING BY STATUTE OR OTHERWISE IN LAW OR EQUITY OR BY CUSTOM OR FROM A COURSE OF DEALING OR USAGE OF TRADE, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

 

WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE COMPANY DOES NOT REPRESENT OR WARRANT THAT (i) THE SOLUTION WILL MEET YOUR NEEDS OR REQUIREMENTS, (ii) THE OPERATION OF THE SOLUTION, WILL BE CONTINUOUS OR FREE OF DEFECTS, ERRORS OR INACCURACIES, (iii) THE FUNCTIONS CONTAINED IN THE SOLUTION WILL OPERATE IN ALL THE COMBINATIONS WHICH MAY BE SELECTED FOR USE BY YOU, (iv) YOUR  DATA WILL BE SAFE FROM UNAUTHORIZED ACCESS, (v) THE SOLUTION AND THE RELATED SERVICES AND FEATURES WILL BE AVAILABLE OR ACCESSIBLE AT ANY GIVEN TIME, OR (vi) YOUR  USE OF THE SOLUTION WILL COMPLY WITH ALL APPLICABLE LAWS. Furthermore, and without limiting the generality of the foregoing, the Company does not warrant, and you expressly disclaim any reliance on any statements or representations, including estimates, not set forth in the Agreement.

 

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR OTHER EXEMPLARY DAMAGES, OR FOR LOSS OF PROFITS OR REVENUE, OR LOSS OF BUSINESS, OR LOSS OF GOODWILL OR REPUTATION, OR LOSS OF USE OR DATA. THE LIMITATION OF LIABILITY IN THIS SECTION SHALL APPLY REGARDLESS OF THE NATURE, TYPE OR FORM OF THE CLAIM, WHETHER BASED IN CONTRACT, TORT, INCLUDING NEGLIGENCE, STRICT LIABILITY, EQUITY OR ANY OTHER THEORY OF LIABILITY, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES WERE FORESEEABLE. FURTHER, THE COMPANY SHALL NOT BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (I) YOUR INABILITY TO USE THE SOLUTION, INCLUDING AS A RESULT OF ANY (A) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR THE COMPANY’S USE OR ACCESS TO THE SOLUTION, (B) OUR DISCONTINUATION OF THE SOLUTION WITH THESE TERMS AND CONDITIONS, OR (C) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF THE SOLUTION FOR ANY REASON; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (III) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY USER IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SOLUTION; OR (IV) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS, OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA. OUR AGGREGATE LIABILITY UNDER ANY AGREEMENT WILL NOT EXCEED ONE HUNDRED DOLLARS ($100).

 

The limitations in this Section shall apply notwithstanding any failure of essential purpose under this Agreement. To the maximum extent permitted by applicable Law, we shall not be liable to User for any deviation from or change in our policies, practices, and procedures.

 

You understand and agree that we have set your prices and entered into the Agreements with you in reliance upon the limitations of liability set forth in these Terms and Conditions, which allocates risk between the Parties and form the basis of a bargain between the Parties.

 

18. CONFIDENTIALITY

You agree that during term of this Agreement and an additional ten (10) years thereafter, you shall maintain the confidentiality of all Confidential Information and shall not use such Confidential Information for your own purposes nor divulge to such Confidential Information to any third party, without our prior written consent. For purposes of this Agreement, the term “Confidential Information” shall mean any and all information of any nature or in any form pertaining to any Know-How, the Solution, the Company or the Agreements (other than as expressly provided for in this Agreement) which was received or learned in the framework of your relationship with us or the Agreement. The Confidentiality restrictions set forth in this Section 18 shall not include apply to any Confidential Information of the Company that: (i) at the time you disclose it to a third party or use it, is generally known to the public through no fault of your own; (ii) at the time you use it or discloses it to a third party, has been made available to you by a third party having the lawful rights to do so without breaching any such obligation of non-use or confidentiality; (iii) is proven by you to have been independently developed by you without making use of the Confidential Information; or (iv) you are required to disclose to comply with applicable laws, or to comply with governmental regulations, provided that you provide prior written notice of such disclosure to the Company and takes reasonable and lawful actions to avoid and/or minimize the degree of such disclosure and affords us as much notice as possible of such disclosure to allow us to do likewise.

 

19. WAIVER OF CLASS ACTION AND JURY TRIAL; CONSENT TO BINDING ARBITRATION. 

Except as set forth below, the Parties agree that any disputes between the Parties (including any disputes between you and our third-party agent) will be resolved through binding and final arbitration instead of through court proceedings. The Parties each hereby waive any right to a jury trial of any Claim (defined below). All controversies, claims, counterclaims, or other disputes arising between the Parties, or you and our third-party agent (each a “Claim”) shall be submitted for binding arbitration in accordance with the Rules of the American Arbitration Association (“AAA Rules”). The arbitration will be heard and determined by a single arbitrator. The arbitration shall occur in Hamilton County, Ohio unless the Parties mutually agree to another location. The Solution shall be deemed to have been provided to you in Ohio. The arbitration hearing shall be held within six (6) months after the filing of the arbitration demand with the American Arbitration Association. The arbitrator’s decision in any such arbitration will be final and binding upon the Parties and may be enforced in any court of competent jurisdiction. The Parties each agree that the arbitration proceedings will be kept confidential and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration, by applicable disclosure rules and regulations of governmental agencies, or as specifically required by state law. The Federal Arbitration Act and federal arbitration law apply to this Agreement. However, the Arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement including, but not limited to, a claim that all or any part of this Agreement is void or voidable.

 

If you reasonably demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of the administrative costs and arbitrator’s fees required for the arbitration as the arbitrator deems necessary to prevent the cost of the arbitration from being prohibitive. In the final award, the arbitrator may apportion the costs of arbitration and the compensation of the arbitrator among the Parties in such amounts as the arbitrator deems appropriate.

 

This arbitration provision does not preclude either Party from seeking action by federal, state, or local government agencies. The Parties each shall have the right to bring qualifying claims in small claims court. In addition, the Parties retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions, and any such request shall not be deemed incompatible with this Agreement, nor a waiver of the right to have disputes submitted to arbitration as provided in this Agreement.

 

Neither Party shall act as a class representative or private attorney general, nor participate as a member of a class of claimants, with respect to any Claim. Claims may not be arbitrated on a class or representative basis. The arbitrator can decide only yours and the Company’s individual Claims. The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated. The arbitrator may award in the arbitration the same damages or other relief available under applicable Law, including injunctive and declaratory relief, as if the action were brought in court on an individual basis. Notwithstanding anything to the contrary in the foregoing or herein, the arbitrator may not issue a “public injunction” and any such “public injunction” may be awarded only by a federal or state court. If either Party seeks a “public injunction,” all other claims and prayers for relief must be adjudicated in arbitration first and any prayer or claim for a “public injunction” in federal or state court stayed until the arbitration is completed, after which the federal or state court can adjudicate the Party’s claim or prayer for “public injunctive relief.” In doing so, the federal or state court is bound under principles of claim or issue preclusion by the decision of the arbitrator. If any provision of this Section 19 is found to be invalid or unenforceable, then that specific provision shall be of no force and effect and shall be severed, but the remainder of this Section 19 shall continue in full force and effect. No waiver of any provision of this Section 19 will be effective or enforceable unless recorded in a writing signed by the Party waiving such a right or requirement. Such a waiver shall not waive or affect any other portion of the Agreement.

 

THIS SECTION LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM, THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN AAA RULES, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. OTHER RIGHTS THAT YOU OR WE WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION.

 

20. USER PROVIDED CONTENT

“Client Content” means content you or any person(s) using your Account, supply or make available to us (including coupons) for publishing, posts directly, or asks us to use on the Solution. You grant us, our third-party service providers and their third-party providers, as applicable, a perpetual, royalty-free, sub-licensable, non-exclusive, fully-paid, worldwide, irrevocable right to store, use, copy, record, modify, display, publish, publicly perform, distribute (in any form or media), transmit by any means, and create derivative works from the Client Content in relation to the Solution. As a SaaS service provider, we will not use, retain or disclose your Client Content without your consent or for any other purpose except to provide you the Solution or any related services or features, including for any commercial purpose of ours outside of our direct business relationship with you, although we may use de-identified or aggregated and anonymized information or metrics about your use of or engagement with the Solution for our internal analytical purposes and/or to improve our Services. To the extent you include or incorporate any materials in your Client Content that is or may be subject to a third-party copyright, trademark, or other intellectual property or publicity right, you certify that you have received all of the relevant permissions and consents to use such materials in a promotional context and to pass on such rights to the Company. You agree to be solely responsible for the Client Content and will produce and deliver all Client Content in accordance with our then current guidelines, procedures, technical requirements, and deadlines. If you fail to comply, we may cancel or suspend your access to the Solution. Without limiting the forgoing, you represent and warrant that the Client Content (i) shall be true and accurate to the best of your knowledge, and (ii) shall not be defamatory, offensive, obscene, indecent, or otherwise unlawful or objectionable. Company reserves the right to accept or transmit Client Content or to remove previously posted Client Content for any reason.

 

21. COMPANY’S RIGHT IN CONTENT/COPYRIGHT/TRADEMARKS; PUBLICITY

If the Company creates or supplies any content you use with the Solution or, the content we create is our sole and exclusive property (“TCC Content”), except for included Client Content and any content we license from a third-party, you understand that Company may supply such TCC Content or similar content to our other clients. You acknowledge that you have no right to use TCC Content apart from your use in connection with the Solution without our prior written consent.  You further agree that to the extent you permits the Company, including orally or by posing for a photo, to record your likeness and/or voice in any medium, then you grant us the right to edit, use, publish, distribute, or display your likeness and/or voice, in whole or in part, for any lawful purpose in relation to our business or your licensing or use of the Solution, in any manner and medium, including but not limited to, advertising, publicity or promotional material online and in print. You agree that we own the copyright in, and all copyrighted portions of the Solution.  You agree not to use or alter any trademark, trade name, trade dress or any name, picture or logo that is commonly identified with us or our affiliates without obtaining our prior written consent. You agree that we may truncate, edit, refuse, reject or exclude from any use in connection with the Solution any content we obtain or link under the licenses you grant us herein.

 

22. REPRESENTATIONS REGARDING CLIENT CONTENT

 You represent and warrant to Company as follows: (i) you have the unrestricted right to use, and to grant the licenses you  hereby grant in the Agreement with respect to, all Client Content;  (ii) your licensing of Client Content to us will not infringe any third-party copyright or trademark rights; (iii)  you and each of your Authorized Users will comply with all applicable Laws and you and any individuals having access to your Account have all required licenses to provide the goods and services you advertise in all applicable jurisdictions; (iv) Neither you nor any of its Authorized Users have not made any false or misleading claims in Client Content or any communications via the Solution; (v) In the event you use third- party social media logos or other membership organization’s branding in your advertisement(s) or communications, you are presently and will remain a member in good standing of each social media platform or membership organization represented with logos and/or branding in your advertisement(s) or website, in accordance with the rules and/or terms and conditions of such platforms or organizations; (vi) you and each of your Authorized Users have not requested, and will not use, the Solution for any unlawful purpose or business; (vii) you have not violated any contractual or legal obligation by entering into this Agreement and requesting us to provide the Solution to you; (viii) you are authorized to represent the business identified in your Account profile; and (ix) all Contacts you and each of your Authorized Users provide us for the Solution have opted into all relevant forms of communication in compliance with all Laws (collectively, your “Client Representations”). You agree to provide the Company prompt written notice if any of the representations and warranties in this Section 22 becomes inaccurate.

 

23. INDEMNIFICATION  

To the maximum extent permitted by applicable Law, User agrees to defend, indemnify and hold the Company and its agents, representatives, employees, and affiliates harmless from any liability or costs, including reasonable attorneys’ fees and related expenses, resulting from: (a) any breach of a Client Representation; (b) User’s or any of its Authorized Users failure to comply with all Laws; (c) any act, omission or fault of User or User’s Authorized Users, employees, agents or contractors in connection with User’s use of the Solution and related services and features; (d) any claim that the Client Content or other information provided by User or its Authorized Users violates any applicable Law or infringes on any third party patent, copyright, trademark, trade secret or other intellectual property or proprietary right; (e) any communication sent through your Account or your Authorized Users’ collection or use of any information obtained through the Solution or its related services and features; (f) any transactions initiated through the Solution.  If the Company assumes the defense of such a matter, you agree to reasonably cooperate with us in such defense.

 

24. MISCELLANEOUS PROVISIONS

 

24.1 Governing Law/Exclusive Jurisdiction - This Agreement is governed by the internal laws of the State of Ohio without reference to any of its conflicts of law provisions. Exclusive jurisdiction for all claims and disputes (that are not subject to arbitration) will be in the state and federal courts located in Ohio.

24.2. Independent Contractors -Both Parties are independent contractors under this Agreement. Consequently, nothing in this Agreement is intended or may be construed as to establish a partnership or joint venture between the Parties and neither Party shall have the authority (actual or apparent) to bind the other Party.
24.3.  No Implied Rights - Other than expressly provided for in this Agreement, nothing in this Agreement grants or shall be construed to grant to any Party any right and/or any license to any Intellectual Property right or application therefore (including but not limited to patent applications or patents) which are held by and/or in the name of the other Party and/or which are controlled by the other Party, or to any Confidential Information received from the other Party.
24.4. Force Majeure - With the exception of payment obligations, neither Party shall be held in breach of its obligations hereunder to the extent that due performance or observance of such obligation is prevented or delayed by war and other hostilities, civil commotion, accident, trade disputes, acts or restraints of government imposition or restrictions of imports or exports or any other cause not within the control of the Party concerned. The Party concerned shall forthwith notify the other Party of the nature and effect of such force majeure event and both Parties shall, where the same is practicable, use commercially reasonable efforts to minimize such effect and to comply with the respective obligation herein contained as nearly as may be in their original form.

24.5. Costs -Except as otherwise provided in this Agreement, each Party bears its own costs relating to the negotiation, preparation and execution and implementation by it of this Agreement and of all other ancillary documents.
24.7. Other Agreements/Amendments - This Agreement and any agreement entered into pursuant to this Agreement constitutes the entire agreement between the Parties and supersedes and replaces any and all prior negotiations, arrangements and understandings, whether or not in writing, between the Parties with respect to the subject matter of the Agreement. No amendment of this Agreement is valid unless it is in writing and signed on behalf of each Party.
24.8. Assignment - This Agreement is binding upon and inures for the benefit of each Party’s respective successors and assigns; provided that you may not assign your rights under the Agreement without our prior written consent.

24.9. Waivers - No failure or delay by any Party in exercising any right or remedy provided by the applicable Laws or pursuant to this Agreement will impair such right or remedy or be construed as a waiver of it and will not preclude its exercise at any subsequent time and no single or partial exercise of any such right or remedy will preclude any further exercise of it or the exercise of any other remedy.

24.10 Electronic Signature – You agree that acceptance of the Agreement, including these Terms and Conditions, given electronically by execution and/or payment of the Order , will have the same legal effect as if each of the individual documents making up the Agreement had been personally signed by User. Our imaged copy of the individual documents constituting the Agreement will be deemed a duplicate original for evidentiary purposes.

24.11. Company’s Contact -Following your acceptance of this Agreement, if you have provided a phone number, mobile phone number and/or email address for contact purposes, you consent to receiving commercial and transactional telephonic or electronic correspondence from us at such number or address via phone call, facsimile, email, or text, including via auto-dialer or recorded message. To opt out of such communications, follow opt-out or unsubscribe instructions included in the text message or email, or contact Client Care at 513-314-0062. You agree that telephone conversations between you and the Company and our respective agents and representatives may be monitored and/or recorded.

24.12. Severability - If any provision of this Agreement or of any of the documents contemplated in it is held to be invalid or unenforceable, then such provision will (so far as it is invalid or unenforceable) have no effect and will be deemed not to be included in this Agreement or the relevant document, but without invalidating any of the remaining provisions of this Agreement or that document.

24.13. Survival – Sections 1, 6, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 19, 20, 21, 22, 23, and 24 shall remain in full force and effect notwithstanding any cancellation or termination of this Agreement.

24.14. Entire Agreement - This Agreement constitutes the entire agreement between the Parties and supersedes all prior agreements and representations, whether express or implied, written or oral, with respect to matters addressed herein.  User agrees not to include any limiting endorsement on a check or other form of payment, and we may cash a check containing a limiting endorsement or accompanied by any limiting instruction without affecting your obligations or our rights. Neither Party’s respective employees or agents are authorized to change or add to the Agreement or any other documents that are part of the Agreement in any manner, and any purported change or addition, whether oral or written, is void. No additional statement, promise or guarantee by any purported representative of Company outside the terms of the Agreement, except as made in a duly signed, written amendment, shall create any binding obligation on Company.

 

Version – October 22, 2023