Effective Date: October 1, 2011
By implementing or using the Service You agree that You are authorized to accept these terms and conditions on behalf of Yourself and/or Your company (collectively, “You”), and that You are bound by the terms of this Agreement for the Service. This Agreement is made and entered into by and between You and Promo Simple. You agree to accept notices sent electronically, including but not limited to, email messages sent to the current email address of Your account and notices posted on the Website.
Subject to the terms and conditions of this Agreement, Promo Simple grants to You (and You agree to comply with) a non-sub-licensable, non-transferable, non-exclusive, revocable, limited license to use: (i) certain Promo Simple proprietary software (the “Software”) and (ii) certain proprietary documentation in the form generally made available by Promo Simple to You on the Site for use with the Software (the “Documentation”).
Your use of the Services shall be restricted pursuant to the terms and conditions of this Agreement. You agree to be responsible for the acts and/or omissions of any third party using the Service through Your account. Other than as expressly granted above, no other rights are granted, including without limitation any and all Promo Simple patents, copyrights, moral rights, trade secrets, trademarks, service marks, publicity rights, and other proprietary rights (whether or not perfected or perfectable) (“Intellectual Property Rights”). Nothing in this Agreement grants to You any rights whatsoever in or relating to the source code of the Software. All ownership rights, title, and Intellectual Property Rights in and to the Services shall remain in Promo Simple and/or its licensors. You agree that Promo Simple has the right to change, modify, add to or discontinue or retire any aspect or feature of the Service at any time. Promo Simple has no obligation to give You notice of any changes. From time to time, Promo Simple may, but is under no obligation to, release upgrades, fixes or new versions of the Service, although these upgrades may not be consistent across all platforms and devices.
You agree not to, or to allow others to: (i) adapt, alter, modify, decompile, translate, make derivative works, disassemble, or reverse engineer the Service, including without limitation, the source code and any other underlying ideas or algorithms of the Software (except to the extent applicable laws specifically prohibit such restriction or where in accordance with Our terms of service); (ii) copy the Software; (iii) transfer, sublicense, loan, sell, lease, use for timesharing or service bureau purposes, or otherwise commercially use or exploit the Service; or (iv) use the Service in violation of any applicable regulation or law; or (v) ship, divert, trans-ship, transfer, export or re-export the Service or any component thereof into any country or use it in any manner prohibited by any export control laws, restrictions, or regulations administered by the U.S. Commerce Department’s Bureau of Export Administration, the U.S. Department of Treasury’s Office of Foreign Assets Control or any other applicable government agency.
You agree to:
- Use the Service for lawful purposes only and in compliance with any policies posted to the Site or conveyed by electronic notice;
- Not use the Service in a way that prevents or inhibits another user from enjoying the Service;
- Not obtain the communications protocol for accessing the Service;
- Not remove, obscure or alter any notices or indications of any Intellectual Property Rights, any trade names, trademarks, service marks, logos, trade dress, and any other distinctive or proprietary symbols, labels, designs or designations (“Branding”), or any electronic notices;
- Not interfere with, or attempt to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the Service servers;
- Not to take any action that imposes an unreasonable or disproportionately large load on our infrastructure;
- Not to challenge or assist others to challenge Branding, Intellectual Property Rights or registration or applications thereof;
- Allow the content posted using the Service by all users, including by You, will be collected, aggregated and anonymously integrated into the Service, and that We will use aggregated data collected from You and other users for statistical and analytical reporting purposes; and
- Allow the Service to be placed on Your website(s) and You hereby grant Us a nonexclusive, irrevocable during the term of this Agreement, royalty-free license to perform, or have performed, these activities.
If You decide to register for the Service, You must provide certain limited information about Yourself as prompted to do so by the Service. We reserve the right to refuse the Service to any user. Either You or Promo Simple may terminate this Agreement at any time for any reason. Promo Simple will not be liable to You or to any third party for any modifications, price changes, or suspension or discontinuation of the Site or Services. Customer hereby consents to inclusion of its name and logo in customer lists that may be published as part of Promo Simple’s marketing and promotional efforts.
PROMO SIMPLE MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT. THE SERVICE IS PROVIDED BY PROMO SIMPLE AND ITS LICENSORS “AS IS” AND “AS AVAILABLE.” YOU ASSUME ALL RISK FOR YOUR USE OF THE SERVICE, INCLUDING WITHOUT LIMITATION ANY HARM CAUSED BY VIRUSES, WORKS, OR OTHER DAMAGING MATERIALS. IN NO EVENT DOES PROMO SIMPLE GUARANTEE ANY RESULTS, INCREASED TRAFFIC OR USER ENGAGEMENT FOR YOU. PROMO SIMPLE DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION THEREOF, ARE ACCURATE, ERROR OR BUG FREE, THAT YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED, OR THAT THE SERVICE’S OPERATION WILL NOT NEGATIVELY AFFECT OTHER SOFTWARE OR HARDWARE. THIS SECTION 4 APPLIES TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW. THE SERVICE IS OFFERED BY PROMO SIMPLE FROM ITS FACILITIES IN THE UNITED STATES OF AMERICA. PROMO SIMPLE MAKES NO REPRESENTATIONS THAT THE SERVICE IS APPROPRIATE OR AVAILABLE FOR USE IN OTHER COUNTRIES. THOSE WHO ACCESS OR USE THE SERVICE FROM OTHER JURISDICTIONS DO SO AT THEIR OWN RISK AND ARE RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS.
LIMITATION OF LIABILITY
IN NO EVENT WILL PROMO SIMPLE AND/OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES BE LIABLE (i) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES RELATED TO OR ARISING FROM YOUR USE, MISUSE, OR INABILITY TO USE THE SERVICE, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOST DATA, LOST PROFITS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE RESULTING FROM YOUR USE OF THE SERVICE, ADVERTISEMENTS, UNAUTHORIZED ACCESS TO OUR SERVERS, SERVER UNAVAILABILITY, AND ANY PERSONAL INFORMATION STORED THEREIN, HOWEVER CAUSED UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED, TO CONTRACT OR TORT AND WHETHER OR NOT PROMO SIMPLE WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE; OR (ii) FOR ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE SERVICE OR DESTRUCTIVE PROPERTIES OF THE SERVICE. IN NO EVENT SHALL PROMO SIMPLE’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL SUM OF MONIES PAID FROM YOU TO US AS CONSIDERATION FOR USE OF THE SERVICE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY
YOU HEREBY AGREE, AT YOUR EXPENSE, TO INDEMNIFY, DEFEND AND HOLD HARMLESS PROMO SIMPLE, ITS LICENSORS, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS FROM AND AGAINST ALL DEMANDS, LIABILITIES, LOSSES, CLAIMS AND EXPENSES, INCLUDING ATTORNEY’S FEES, ARISING OUT OF (A) YOUR USE OF THE SERVICE, (B) THIRD PARTY CLAIMS, ACTIONS OR ALLEGATIONS OF INFRINGEMENT BASED ON INFORMATION, DATA OR CONTENT YOU SUBMITTED IN CONNECTION WITH THE SERVICE, (C) ANY FRAUD OR MANIPULATION, OR OTHER BREACH OF THIS AGREEMENT, BY YOU, OR (D) THIRD PARTY CLAIMS, ACTIONS OR ALLEGATIONS BROUGHT AGAINST US ARISING OUT OF YOUR USE OF THE SERVICE OR THE SITE. PROMO SIMPLE RESERVES THE RIGHT, AT ITS OWN EXPENSE AND IN ITS SOLE DISCRETION, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU.
TERM AND TERMINATION
- Headings. Headings are for organizational purposes only and shall in no way affect the interpretation of this Agreement.
- Assignment. You may not assign or otherwise transfer Your rights or delegate Your obligations under this Agreement, in whole or in part, any attempted assignment by You shall be null and void.
- Survival. Upon any expiration or termination of this Agreement, the following Sections of this Agreement shall survive: 2, and 4 through 8.
- Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Oregon and the federal U.S. laws applicable therein, excluding its choice of law provisions, and the parties agree to submit to the personal and exclusive jurisdiction of such courts.
- Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and remain enforceable between the parties.
- No waiver. Failure of either party to act in the event of a breach of this Agreement by the other shall not be deemed a waiver of such breach or a waiver of future breaches.
- Notices. Any notice given under this Agreement shall be in writing and in the English language and shall be emailed, if to Promo Simple – legal (at) promosimple (dot) com, or if to You, to the email or physical address associated with Your account. You hereby consent to receiving any notices relevant to the Services or this Agreement by email without requiring a handwritten signature for such notice to be effective.
- Force Majeure. Neither party shall be liable for failing or delaying performance of its obligations (except for the payment of money) resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, natural disasters, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.