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This agreement is entered into by Delaware corporation BeThere, Inc. (“BeThere”) and the entity agreeing to the terms herein (“Customer”) and is effective as of the date and time Customer clicks the “I Accept” button below (the “Effective Date”). If you are accepting on behalf of Customer, you represent and warrant that: (a) you have full legal authority to bind your employer, or the applicable entity, to these terms and conditions; (b) you have read and understand this agreement; and (c) you agree to this agreement on behalf of the party that you represent. If you do not have the legal authority to bind Customer, please do not click the “I Accept” button below. This agreement governs Customer’s access to and use of the Services.
1.
BeThere Deals Service
1.1
Service.
BeThere shall
provide Customer with a web portal and mobile applications for Apple
iPhone and Google Android-based phones that: (a) permits Merchants to
schedule the sending of offers to mobile End Users; and (b) permits
End Users to redeem those offers at Merchant locations. BeThere shall
also provide Customer a web portal that permits Customer to process
payments from Merchants with Customer’s PayPal account.
1.2
Service fees to Merchants.
BeThere may, at its discretion, charge Merchants fees when End Users
redeem offers at Merchant locations.
1.3
Modifications to Service.
BeThere
shall have the right to change, suspend, or discontinue any aspect of
the Service at any time, without notice. If BeThere makes a material
change to the Services, BeThere will inform Customer, provided that
Customer has subscribed with BeThere to be informed about such
change.
1.4
Ads.
Customer agrees that
BeThere may serve Ads in connection with the Service.
1.5
Service level assurances.
BeThere shall take reasonable measures to minimize the frequency and
duration of periods during which Service is inaccessible, but makes
no guarantee of Service availability during the term of this
agreement.
2.
Customer obligations.
2.1
Unauthorized use.
Customer will use commercially reasonable efforts to prevent
unauthorized use of the Services and to terminate any unauthorized
use. Customer will promptly notify BeThere of any unauthorized use
of, or access to, the Services of which it becomes aware.
2.2
Restrictions on use.
Unless BeThere specifically agrees in writing, Customer will not, and
will use commercially reasonable efforts to make sure a third party
does not: (a) sell, resell, lease, or the functional equivalent, the
Services to a third party; (b) attempt to reverse engineer the
Services or any component; (c) attempt to create a substitute or
similar service through use of, or access to, the Services; use any
unsavory or illegal contact in connection with use of the Service; or
(e) use the Service in furtherance of any illegal act. Customer is
solely responsible for any applicable compliance with HIPAA. Customer
shall comply with any additional usage policies and limits concerning
use of the Service as requested by BeThere from time to time.
2.3
Third-party Requests.
Customer is responsible for responding to Third-party Requests.
BeThere will, to the extent allowed by law and by the terms of the
Third-party Request: (a) promptly notify Customer of its receipt of a
Third-party Request; (b) comply with Customer’s reasonable
requests regarding its efforts to oppose a Third-party Request; and
(c) provide Customer with the information or tools required for
Customer to respond to the Third-party Request. Customer will first
seek to obtain the information required to respond to the Third-party
Request on its own, and will contact BeThere only if it cannot
reasonably obtain such information.
3.
Fees.
There is no fee for
Service during the 60-day free trial under this agreement.
4.
Term.
The Service is
provided at no charge to Customer for the first sixty calendar days
from the Effective Date. BeThere will send Customer an agreement for
continued Service prior to the end of the 60-day period. If Customer
elects not to accept this agreement for continued service within 48
hours of the end of the 60-day period, then BeThere may discontinue
Service at any time thereafter at its discretion.
5.
Suspension.
If BeThere
becomes aware of Customer’s breach of this agreement, BeThere
may Suspend Service until Customer has cured the breach that caused
the Suspension. BeThere
may also Suspend Services in response to an Emergency Security Issue,
in the event of which BeThere will take reasonable measures to
minimize the extent and duration of the Suspension.
6.
Confidential Information.
6.1
Obligations.
Each party
will: (a) protect the other party’s Confidential Information
with the same standard of care it uses to protect its own
Confidential Information; and (b) not disclose the Confidential
Information, except to employees and agents who need to know it and
who have executed a prior written agreement to keep it confidential.
Each party (and any employees and agents to whom it has disclosed
Confidential Information) may use Confidential Information only to
exercise rights and fulfill obligations under this agreement, while
using reasonable care to protect that Confidential Information. Each
party is responsible for any actions of its employees and agents in
violation of this section.
6.2
Exceptions.
Confidential
Information does not include information that: (a) the recipient of
the Confidential Information already knew; (b) becomes public through
no fault of the recipient; (c) was independently developed by the
recipient; or (d) was rightfully given to the recipient by another
party.
6.3
Required disclosure.
Each
party may disclose the other party’s Confidential Information
when required by law but only after it, if legally permissible: (a)
uses commercially reasonable efforts to notify the other party; and
(b) gives the other party the chance to challenge the disclosure.
7.
Intellectual Property Rights; Brand Features.
7.1
Intellectual Property Rights.
Except as expressly set forth herein, this agreement does not grant
either party any rights, implied or otherwise, to the other’s
content or any of the other’s intellectual property. As between
the parties, Customer owns all Intellectual Property Rights in
Customer Data, and BeThere owns all Intellectual Property Rights in
the Services. BeThere may access Customer Data for use related to
Services provided under this agreement.
7.2
Display of Brand Features.
BeThere may display those Customer Brand Features authorized by
Customer (such authorization is provided by Customer uploading its
Brand Features into the Services) within designated areas of the
Service Pages. BeThere may also display BeThere Brand Features on the
Service Pages to indicate that the Services are provided by BeThere.
Neither party may display or use the other party’s Brand
Features beyond what is allowed in this agreement without the other
party’s prior written consent.
7.3
Brand Features limitation.
Any use of a party’s Brand Features will inure to the benefit
of the party holding Intellectual Property Rights in those Brand
Features. A party may revoke the other party’s right to use its
Brand Features pursuant to this agreement with written notice to the
other and a reasonable period to stop the use.
8.
Publicity.
Customer
agrees that BeThere may include Customer’s name or Brand
Features in a list of BeThere customers, online or in promotional
materials. Customer also agrees that BeThere may verbally reference
Customer as a customer of the BeThere products or services that are
the subject of this agreement.
9.
Representations, warranties and disclaimers.
9.1
Representations and warranties.
Each party represents that it has full power and authority to enter
into the agreement. Each party warrants that it will comply with all
laws and regulations applicable to its provision, or use, of the
Services, as applicable (including applicable security breach
notification law).
9.2
Disclaimers.
TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY
PROVIDED FOR HEREIN, NEITHER PARTY MAKES ANY OTHER WARRANTY OF ANY
KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING
WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR USE AND NONINFRINGEMENT. BETHERE MAKES NO REPRESENTATIONS
ABOUT ANY CONTENT OR INFORMATION MADE ACCESSIBLE BY OR THROUGH THE
SERVICES. CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE NOT A TELEPHONY
SERVICE AND THAT THE SERVICES ARE NOT CAPABLE OF PLACING OR RECEIVING
ANY CALLS, INCLUDING EMERGENCY SERVICES CALLS, OVER PUBLICLY SWITCHED
TELEPHONE NETWORKS.
10.
Termination.
10.1
By Customer.
Customer may
discontinue use of the Service at any time.
10.2
By BeThere.
Customer
agrees that BeThere may at any time and for any reason terminate this
agreement and/or terminate the provision of all or any portion of the
Service upon at least thirty days notice to Customer, unless (i)
Customer has breached this agreement or (ii) BeThere reasonably
determines that it is commercially impractical to continue providing
the Service in light of applicable laws, in which case BeThere may
terminate Service immediately.
10.3
Effects of termination.
Upon termination: (i) the rights granted by one party to the other
will cease immediately (except as set forth in this section); (ii)
BeThere will provide Customer access to, and the ability to export,
the Customer Data for a commercially reasonable period of time; and
(iii) after a commercially reasonable period of time, BeThere will
delete Customer Data by removing pointers to it on BeThere’s
active servers and overwriting it over time.
11.
Indemnification.
Customer
will indemnify, defend, and hold harmless BeThere from and against
all liabilities, damages, and costs (including settlement costs and
reasonable attorneys’ fees) arising out of a third party claim:
(i) regarding Customer Data; (ii) that Customer Brand Features
infringe or misappropriate any patent, copyright, trade secret or
trademark of a third party; or (iii) regarding Customer’s use
of the Services in violation of this agreement. The party seeking
indemnification will promptly notify the other party of the claim and
cooperate with the other party in defending the claim. The
indemnifying party has full control and authority over the defense,
except that: (a) any settlement requiring the party seeking
indemnification to admit liability or to pay any money will require
that party’s prior written consent, such consent not to be
unreasonably withheld or delayed; and (b) the other party may join in
the defense with its own counsel at its own expense.
12.
Limitation of liability.
12.1
Limitation on indirect liability.
NEITHER PARTY WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES
OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR
PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT
SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY
A REMEDY.
12.2
Limitation on amount of liability.
NEITHER PARTY MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN
ONE THOUSAND DOLLARS ($1000 USD).
12.3
Exceptions to limitations.
These limitations of liability apply to the fullest extent permitted
by applicable law but do not apply to breaches of confidentiality
obligations, violations of a party’s Intellectual Property
Rights by the other party, or indemnification obligations.
13.
Miscellaneous.
13.1
Notices.
Unless specified
otherwise herein: (a) all notices must be in writing and addressed to
the attention of the other party’s legal department and primary
point of contact; and (b) notice will be deemed given: (i) when
verified by written receipt if sent by personal courier, overnight
courier, or when received if sent by mail without verification of
receipt; or (ii) when verified by automated receipt or electronic
logs if sent by facsimile or email.
13.2
Assignment.
No party may
assign or transfer its rights or obligations under any part of this
agreement without the prior written consent of the other party.
13.3
Change of control.
Upon a
change of control (for example, through a stock purchase or sale,
merger, or other form of corporate transaction): (a) the party
experiencing the change of control will provide written notice to the
other party within thirty days after the change of control; and (b)
the other party may immediately terminate this agreement any time
between the change of control and thirty days after it receives the
written notice in subsection (a).
13.4
Force majeure.
Neither
party will be liable for inadequate performance to the extent caused
by a condition (for example, natural disaster, act of war or
terrorism, riot, labor condition, governmental action, and Internet
disturbance) that was beyond the party’s reasonable control.
13.5
No waiver.
Failure to
enforce any provision of this agreement will not constitute a waiver.
13.6
Severability.
If any
provision of this agreement is found unenforceable, the balance of
the agreement will remain in full force and effect.
13.7
No agency.
The parties
are independent contractors, and this agreement does not create an
agency, partnership, or joint venture.
13.8
No third-party beneficiaries.
There are no third-party beneficiaries to this agreement.
13.9
Equitable relief.
Nothing
in this agreement will limit either party’s ability to seek
equitable relief.
13.10
Governing law.
This
agreement is governed by California law, excluding that state’s
choice of law rules. FOR ANY DISPUTE ARISING OUT OF OR RELATING TO
THIS AGREEMENT, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND
THE EXCLUSIVE VENUE OF, THE COURTS IN SANTA CLARA COUNTY, CALIFORNIA.
13.11
Amendment or modification of this agreement.
BeThere shall have the right to change or modify any of the terms and
conditions contained in this agreement or any policy governing the
Service, at any time, by posting the new agreement at
[http://www.betheredeals.com/mobileterms/]
or another URL that BeThere may provide. BeThere may, at its
discretion, also provide notice of any such changes via a blog, RSS
feed, Twitter, or other social media. Customer is responsible for
regularly reviewing any updates to this agreement. Any changes or
modifications to this agreement will become binding (1) by Customer’s
online acceptance of updated terms, or (2) after Customer’s
continued use of the Service after such terms have been updated by
BeThere.
13.12
Survival.
The following
sections will survive expiration or termination of this agreement:
sections 6 (Confidentiality), 7 (Intellectual Property; Brand
Features), 9 (Representations, Warranties and Disclaimers), 10
(Termination), 11 (Indemnification), 12 (Limitation of Liability),
and 13 (Miscellaneous).
13.13
Entire agreement.
This
agreement, and all documents referenced herein, is the parties’
entire agreement relating to its subject and supersedes any prior or
contemporaneous agreements on that subject. The terms located at a
URL and referenced in this agreement are hereby incorporated by this
reference.
13.14
Interpretation of conflicting terms.
If there is a conflict between the documents that make up this
agreement, the documents will control in the following order: the
agreement, and the terms located at any URL provided by BeThere.
14.
Definitions.
“Ads” means online advertisements displayed by BeThere to End Users.
“Brand Features” means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time.
“Confidential Information” means information disclosed by a party to the other party under this agreement that is marked as confidential or would normally be considered confidential under the circumstances of its provision in the ordinary course of business. Customer Data is Customer’s Confidential Information.
“Customer Data” means data, including email, provided, generated, transmitted or displayed via the Services by Customer or End Users.
“Emergency Security Issue” means either: (a) any Customer use of the Services that could disrupt: (i) the Services; (ii) other customers’ use of the Services; or (iii) the BeThere network or servers used to provide the Services; or (b) unauthorized third-party access to the Services.
“End Users” means the individuals Customer permits to use the Services to obtain offers from Merchants.
“HIPAA” means the Health Insurance Portability and Accountability Act of 1996, as may be amended from time to time, and any related regulations.
“Intellectual Property Rights” means current and future worldwide rights under patent law, copyright law, trade secret law, trademark law, moral rights law, and other similar rights.
“Merchants” means the entities Customer permits to use the Services to present offers to End Users.
“Notification Email Address” means the email address designated by Customer to receive email notifications from BeThere. Customer may change this email address through the Admin Console.
“Services” means those services that are more fully described in section 1 of this agreement, at http://www.betheredeals.com/gomobile/, and any other URL that BeThere may provide.
“Suspend” and “Suspension” means the immediate disabling of access to the Services, or components of the Services, as applicable, to prevent further use of the Services.
“Third-party Request” means a request from a third party for records relating to an End User’s or Merchant’s use of the Services. Third-party Requests can be a lawful search warrant, court order, subpoena, other valid legal order, or written consent to disclosure provided by the End User or Merchant whose records are sought.