- Definitions. In addition to the capitalized terms defined elsewhere in this Agreement, as used in this Agreement, the following capitalized terms have the meanings given to them in this Section 1.
1.1. “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2. “Customized Catalog” means any promotional products catalog generated by The Flyer Box Club. specifically for Subscriber’s use.
1.3. “Data” means all data provided by Subscriber to The Flyer Box Club, including Subscriber’s own Subscribers’ contact information.
1.4. “Improvements” means any improvement, refinement, enhancement, or other modification of, or any addition to, the Platform.
1.5. “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
1.6. “Platform” means the tools and features developed, operated and maintained by Domino 2 Technologies, Inc. as to which Subscriber is obtaining access to hereunder via https://www.TheFlyerBoxClub.com (the “Site”), including the Customized Catalog.
1.7. “Services” means the services provided to Subscriber in connection with its use or utilization of the Platform, including managing the Platform on Subscriber’s behalf and/or generating content to be processed via the Platform.
1.8. “Third-Party Applications” means technology, Web-based applications and offline software products that are provided by third parties, interoperate with the Platform, and are not owned or created by The Flyer Box.
1.9. “Subscriber Marks” means all proprietary marks (including, without limitation any trademarks, service marks, trade dress, or other marks or logos) of Subscriber or its Affiliates heretofore or hereinafter registered or used.
1.10. “Users” means individuals who are authorized by Subscriber to use the Platform on Subscriber’s behalf. Users may include but are not limited to Subscriber’s employees, consultants, contractors, and agents, or other third parties.
- Use of the The Flyer Box Club – Managed Marketing Services Platform.
2.1. Services To Be Provided. The Flyer Box Club agrees to provide marketing services for the Subscriber during the term of this Agree. Depending on the level of service the Subscriber has purchased, these Services include one or both of these services:
- Automatic posting to the Subscriber’s social media accounts
- The creation, management and distribution of email marketing materials
2.2. Exclusions from Services. The Services are limited to those described in this Agreement. The Services provided in accordance with this Agreement shall not include:
- Creating custom materials for the Subscriber
- Building the Subscriber’s email list in an effort to increase the Subscriber’s number of email contacts
2.3. Subscriber’s Responsibilities. Subscriber shall (i) be responsible for its and its Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity, and legality of Subscriber’s Data and of the means by which Subscriber acquired its Data, (iii) be responsible for preventing unauthorized access to or use of the Platform, and notify The Flyer Box Club promptly of any such unauthorized access or use, and (iv) use the Platform only in accordance with this Agreement, our rules and any applicable laws and government regulations. Subscriber shall provide The Flyer Box Club with all information, assistance and materials as reasonably required to activate and operate the Platform for Subscriber pursuant to this Agreement, including uploading Subscriber’s logo, sharing customer contact information, etc. In the event that a third party inquires about how The Flyer Box Club acquired his or her information (an “Inquiring Party”), upon The Flyer Box Club’s request, Subscriber will promptly provide all information requested by The Flyer Box Club concerning or related to the source of the information for such Inquiring Party and the collection of his or her consumer information, including, without limitation, all information necessary in order to (i) identify the source of the information for such party and (ii) validate that such party opted-in to receiving marketing materials from third parties. For third parties whose information is sourced through websites, such information will include, without limitation, (A) the website with respect to which such individual opted-in to receiving marketing materials from third parties (including the name of the owner of or other person hosting such website), (B) the date in on which such individual accessed such website and (C) the IP address of the network utilized by such individual to access such website. For information that is sourced through phone marketing, compiled data, email responses and other channels, such information will include, without limitation, (A) the channel through which such individual opted-in to receiving marketing materials from third parties (including the owner of or other person operating such channel or collecting such information), (B) the date on which such individual opted in, (C) and relevant identifying information to validate that such individual originated through the specified channel. Notwithstanding anything to the contrary contained in this Agreement, The Flyer Box Club shall be entitled to disclose to any Inquiring Party (y) that The Flyer Box Club used his or her consumer information in conjunction with and as part of the provision of services to Subscriber and (z) all other information described under this Section.
2.3. Restrictions. Subscriber shall not (a) use the Platform as a service bureau or otherwise make the Platform available to anyone other than Users, (b) sell, resell, rent or lease the Platform or access thereto to any third party, (c) use the Platform to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy or other rights, (d) use the Platform to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or operation of the Platform or third-party data contained therein, or (f) attempt to gain unauthorized access to the Platform or its related systems or networks. Users may be required to acknowledge and agree to the pertinent provisions of this Agreement as a condition to access. Further, Subscriber may not access the The Flyer Box Club Platform if it is or is under the control of a direct competitor of The Flyer Box Club or for purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purposes, except with The Flyer Box Club’s prior written consent.
2.5. Compliance Practices. The Flyer Box Club does not warrant or represent that the Services, Data, Customized Catalog, or any other services or materials provided pursuant to the terms of this Agreement or the use of the Platform (“Services/Materials”) are compliant with Federal or State law; Subscriber’s company policy; or User’s company policy (“Regulations/Policies). Subscriber assumes responsibility and warrants and represents that Subscriber is solely responsible for ensuring compliance with Regulations/Policies as it regards the use of the Services/Materials and assumes all liability for failing to comply with applicable Regulations/Policies. To the best of its knowledge, Subscriber warrants and represents that is in compliance with all Regulations/Policies to which it is lawfully subject with regards to the use of the Services/Materials.
2.6. Limitations. Scheduled system maintenance shall take place during a normal maintenance window, as reasonably determined by The Flyer Box Club. During such time, the Platform may be unavailable. Emergency maintenance may be required at other times in the event of system failure. The Flyer Box Club will use commercially reasonable efforts to promptly remedy any system failure and restore access to the Platform.
2.7. Estimations. This Agreement provides for the use of a Platform and the delivery of Services, which may include the production of marketing pieces. In rendering these services, The Flyer Box Club may provide Subscriber with an estimated number of marketing pieces to be produced. This is an estimate only and not a promise to produce or distribute the estimated number of marketing pieces. There is no guarantee that any specific number of marketing pieces will be produced and distributed.
2.8.Independent Marketing Service Provider. The parties intend that this Agreement create an independent contractor relationship between them. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Subscriber is interested only in procuring the Services of The Flyer Box Club and accessing the Platform. The Flyer Box Club is a professional person and independent marketing service provider. The Flyer Box Club is not an agent, employee, or affiliate of Subscriber for any purpose.
- Support and Technical Matters.
3.1. Maintenance and Technical Support Relating to Subscriber’s Customized Catalog. During the Term, The Flyer Box Club shall provide reasonable maintenance and technical support services relating to the Platform.
3.2. Accuracy of Information in Subscriber’s Customized Catalog. Subscriber acknowledges and agrees that The Flyer Box Club shall not be responsible for the accuracy of any information (including Data) posted in any Customized Catalog. The Flyer Box Club cannot guarantee specific pricing, product descriptions, or availability, as these factors are controlled in part by suppliers and other parties. The Flyer Box Club shall, in its sole discretion, determine the method, details, and means of developing, altering, or enhancing any Customized Catalog.
3.3. Hosting. The Flyer Box Club shall host and serve the Platform. The Flyer Box Club may retain one or more third-party service providers to supply the necessary facilities, equipment, and connectivity to provide the hosting services. The Flyer Box Club retains the sole right and control over the programming, content, and conduct on the The Flyer Box Club Platform. The Flyer Box Club shall solely be responsible for the maintenance, functionality and improvement of The Flyer Box Club Platform.
3.4. Conduct on Site. Your use of the site is subject to all applicable laws and regulations, including Netiquette, and you are solely responsible for the contents of your communications through the site. By posting information in or otherwise using any communications service, chat room, message board, newsgroup, software library, or other interactive service that may be available to you on or through this site, you agree that you will not upload, share, post, or otherwise distribute or facilitate distribution of any content — including text, communications, software, images, sounds, data, or other information — that:
(a) Is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, contains explicit or graphic descriptions or accounts of sexual acts (including but not limited to sexual language of a violent or threatening nature directed at another individual or group of individuals), or otherwise violates our rules or policies;
(b) Victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
(c) Infringes on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party;
(d) Constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (also known as “spamming”), chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling;
(e) Contains software viruses or any other computer code, files, or programs that are designed or intended to disrupt, damage, or limit the functioning of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any third party; or
(f) Impersonates any person or entity, including any of our employees or representatives.
In addition, you may not use your account to breach security of another account or attempt to gain unauthorized access to another network or server. Not all areas of the site may be available to you or other authorized users of the site. You shall not interfere with anyone else’s use and enjoyment of the site or other similar services. Users who violate systems or network security may incur criminal or civil liability.
You agree that we may at any time, and at our sole discretion, terminate your subscription without prior notice to you for violating any of the above provisions. In addition, you acknowledge that we will cooperate fully with investigations of violations of systems or network security at other sites, including cooperating with law enforcement authorities in investigating suspected criminal violations.
- Fees; Payment.
4.1. Fees. In exchange for the provision of the Platform, Subscriber agrees to pay The Flyer Box Club all fees listed on the confirmation email sent to Subscriber or otherwise agreed to by Subscriber during the subscription process (“Fees”). Subscriber agrees that (i) Fees are due and payable in United States dollars (ii) Fees are not based on actual usage, and (iii) except as set forth in Section 18, payment obligations are non-cancelable and Fees paid are non-refundable. Fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof (or the last day of the applicable month if a given month does not have a corresponding day).
4.2. Invoicing and Payment. Subscriber will provide The Flyer Box Club with valid and updated credit card information, or with an alternative payment method reasonably acceptable to The Flyer Box Club. If Subscriber provides credit card information to The Flyer Box Club, Subscriber authorizes The Flyer Box Club to charge such credit for all Fees due hereunder. Such charges shall be made in advance, either monthly or annually. Subscriber is responsible for maintaining complete and accurate billing and contact information in its account.
4.3. Verification of Fair Market Value and Services Rendered. Payments are based on a set fee schedule. Fees are not based on nor shall fees be paid according to the amount of business referred or anticipated. The fees owed under the terms of this Agreement are offered at a fair market value. Subscriber warrants and represents that Subscriber has independently verified and determined that the fees for Services/Materials are offered at a fair market rate and documented the same. Subscriber may request service reports as additional verification that Services have been rendered as promised under the terms of this Agreement.
- Suspension or Cancelation of Access to the Platform. If any amount owing by Subscriber under this or any other agreement for services is twenty-one (21) or more days past due, The Flyer Box Club may, without limiting its other rights and remedies, suspend or cancel Subscriber’s access to the Platform (including without limitation Subscriber’s access to all Data) until such amounts are paid in full.
5.1. Suspended Accounts and Reinstatement Fee. If, for any reason, Subscriber’s credit card company refuses to pay the amount billed for the service, Subscriber agrees that we may, at our option, suspend or terminate Subscriber’s subscription to the service and require Subscriber to pay the overdue amount by other means acceptable to us. We may charge a fee for reinstatement of suspended or terminated accounts.
5.2. Accrued Charges. Subscriber agrees that until Subscriber’s subscription to the service is terminated, Subscriber will continue to accrue charges for which Subscriber remains responsible, even if Subscriber does not use the service.
5.3. Legal Fees. In the event legal action is necessary to collect on balances due, Subscriber agrees to reimburse us for all expenses incurred to recover sums due, including attorney fees and other legal expenses.
Unless otherwise stated, 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”). Subscriber is solely responsible for paying all Taxes associated with this Agreement. If The Flyer Box Club has the legal obligation to pay or collect Taxes for which Subscriber is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Subscriber, unless Subscriber provides The Flyer Box with a valid tax exemption certificate authorized by the appropriate taxing authority.
7. License Grant.
Subscriber hereby grants to The Flyer Box Club, under all of its applicable intellectual property rights, a worldwide, non-exclusive, royalty-free, license to use Data and Subscriber Marks in conjunction with the provision of the Platform to Subscriber and its Users under this Agreement. Further, Subscriber grants and agrees to grant to The Flyer Box Club a non-exclusive, transferable license to use such Data (a) for statistical use (provided that such data is not disclosed if it is personally identifiable to Subscriber); (b) on an aggregated basis, for any lawful purpose (again, provided that such data is not disclosed if it is personally identifiable to Subscriber), and (b) as necessary to monitor and improve the Platform.
8. Intellectual Property Ownership.
8.1. Ownership of the Works. All right, title, and interest in the Platform, including technology and trade secrets embodied therein and any custom developments created or provided in connection with or related to this Agreement, including any Customized Catalog, all copyrights, patents, trade secrets, trade dress, and other proprietary rights, and any derivative works thereof (including Improvements), shall belong solely and exclusively to The Flyer Box Club or its licensors, and Subscriber shall have no rights whatsoever in any of the foregoing except as expressly set forth herein. Subscriber acknowledges that the Platform is comprised of valuable trade secrets and is the confidential information of The Flyer Box Club and/or its licensors. Nothing in this Agreement or otherwise will be deemed to grant to Subscriber or its Users an ownership interest in the Platform, in whole or in part. All content and materials included as part of the Platform, such as text, graphics, logos, button icons, images, audio clips, information, data, forms, photographs, graphs, videos, typefaces, graphics, music, sounds, and other material, and software (the “Works”) are the property of The Flyer Box Club and are protected by copyrights, trademarks, trade secrets, or other proprietary rights, and these rights are valid and protected in all forms, media, and technologies existing now or hereinafter developed. All Works are copyrighted as individual works and as a collective work under the U.S. copyright laws and international treaty provisions, and The Flyer Box Club owns a copyright in the selection, coordination, arrangement and enhancement thereof. Subscriber may not modify, remove, delete, augment, add to, publish, transmit, adapt, translate, participate in the transfer or sale of, create derivative works from, or in any way exploit any of the Works, in whole or in part. Any use other than as expressly contemplated herein, including the reproduction, modification, distribution, transmission, adaptations, translation, republication, display, or performance, of the Works is strictly prohibited. Subscriber understands and acknowledges that unauthorized disclosure, use or copying of the Works may cause The Flyer Box Club and its licensors irreparable injury, which may not be remedied at law, and agrees that The Flyer Box Club and its licensors’ remedies for breach of this Agreement may be in equity by way of injunctive or other equitable relief.
8.2. Ownership and Use of Data. Subject to Section 7, as between The Flyer Box Club and Subscriber, Subscriber exclusively owns all rights, title, and interest in and to all of its Data. The Flyer Box Club will not use such Data for any purpose other than to provide the Platform to Subscriber.
8.3. Suggestions. The Flyer Box Club shall have and Subscriber hereby grants a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Platform and any derivatives thereof any suggestions, enhancement requests, recommendations, or other feedback provided by Subscribers (including Users), relating to the Platform.
8.4. Intellectual Property Rights of Others. We respect the intellectual property of others, and we ask Subscriber do the same. If Subscriber or any user of this site believes its copyright, trademark or other property rights have been infringed by a posting on this site, Subscriber or the user should send notification to our Designated Agent (as identified below) immediately. To be effective, the notification must include:
(a) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed’
(b) Identification of the copyrighted work claimed to have been infringed;
(c) Information reasonably sufficient to permit us to contact the complaining party, such as address, telephone number and, if available, an electronic mail address at which the complaining party may be contacted;
(d) Identification of the material that is claimed to be infringing or to be subject to infringing activity and that is to be removed and information reasonably sufficient to permit us to locate the materials;
(e) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, agent, or the law; and
(f) A statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringing.
8.5. Designated Agent for Notice.Pursuant to the Digital Millennium Copyright Act, 17 U.S.C. Sec. 512(c), our Designated Agent for Notice of claims of copyright infringement can be reached as indicated below. Service of repeat infringers of copyright or of users about whom repeat claims of copyright infringement are received will be terminated.
Designated Agent for Claimed Infringement:
1801 S. Mopac, Ste 100
Austin, Texas 78746
Subscriber acknowledges and agrees that upon receipt of a notice of a claim of copyright infringement, we may immediately remove the identified materials from our site without liability to Subscriber or any other party and that the claims of the complaining party and the party that originally posted the materials will be referred to the United States Copyright Office for adjudication as provided in the Digital Millennium Copyright Act.
The The Flyer Box Club name and logo and other related names, design marks, product names, feature names, and related logos are trademarks of Domino 2 Technologies, Inc. and may not be used, copied, or imitated, in whole or in part, without the express prior written permission of The Flyer Box Club. In addition, except as otherwise set forth herein, the look and feel of the Platform (including all page headers, custom graphics, button icons, and scripts) constitutes the service marks, trademarks, and trade dress of The Flyer Box Club and may not be copied imitated or used, in whole or in part, without the express prior written permission of The Flyer Box Club.
- Links to External Sites. The Site and the Platform may contain links to other web sites. The Flyer Box is not responsible for the availability of these external sites nor does it endorse the activities or services provided by these websites. These other sites and parties are not under our control, and Subscriber acknowledges that we are not responsible for the accuracy, copyright compliance, legality, decency, or any other aspect of the content of such sites, nor are we responsible for errors or omissions in any references to other parties or their products and services. The inclusion of such a link or reference is provided merely as a convenience and does not imply endorsement of, or association with, the site or party by us, or any warranty of any kind, either express or implied. Under no circumstances will The Flyer Box Club be held responsible or liable, directly or indirectly, for any loss or damage caused or alleged to have been caused to a user in connection with the use of or reliance on any content, goods, or services available on such external websites.
- Third-Party Service Providers. The Platform may include Third-Party Applications or may be fulfilled by third-party providers who are acting on behalf of The Flyer Box Club. Subscriber acknowledges and agrees that The Flyer Box Club may allow providers of those Third-Party Applications to access its Data as required for the interoperation of such Third-Party Applications with the Platform.
- Warranties and Disclaimers.
13.1. Mutual Warranties.
Each party represents and warrants that it has the legal power to enter into this Agreement.
13.2. Subscriber Warranties. The methods and practices used to collect Data provided to The Flyer Box Club hereunder will at times be in compliance with U.S. or State laws, rules, and or regulations (including, without limitation, the CAN-SPAM Act (15 U.S.C. §§ 7701 – 7713)), and all other applicable federal and state consumer protection laws.
13.3. Disclaimer of Warranties.
ALL MATERIALS AND SERVICES ON THIS SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. The flyer box club makes no WARRANTY or representation OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE AND AGAINST INFRINGEMENT; IMPLIED WARRANTIES OF MERCHANTABILITY OR USAGE OF TRADE; and IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY THAT (a) THE SERVICES AND MATERIALS WILL MEET YOUR REQUIREMENTS, (b) THE SERVICES AND MATERIALS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (c) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR MATERIALS WILL BE EFFECTIVE, ACCURATE OR RELIABLE, OR (d) THE QUALITY OF ANY PRODUCTS, SERVICES, OR INFORMATION PURCHASED OR OBTAINED BY YOU FROM THE SITE FROM US OR OUR AFFILIATES WILL MEET YOUR EXPECTATIONS OR BE FREE FROM MISTAKES, ERRORS OR DEFECTS. There are no warranties which extend beyond the description on the face hereof.
THIS SITE COULD INCLUDE TECHNICAL OR OTHER MISTAKES, INACCURACIES OR TYPOGRAPHICAL ERRORS. WE MAY MAKE CHANGES TO THE MATERIALS AND SERVICES AT THIS SITE, INCLUDING THE PRICES AND DESCRIPTIONS OF ANY PRODUCTS LISTED HEREIN, AT ANY TIME WITHOUT NOTICE. THE MATERIALS OR SERVICES AT THIS SITE MAY BE OUT OF DATE, AND WE MAKE NO COMMITMENT TO UPDATE SUCH MATERIALS OR SERVICES.
THE USE OF THE SERVICES OR THE DOWNLOADING OR OTHER ACQUISITION OF ANY MATERIALS THROUGH THIS SITE IS DONE AT YOUR OWN DISCRETION AND RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITIES.
Through your use of the site, you may have the opportunities to engage in commercial transactions with other users and vendors. You acknowledge that all transactions relating to any merchandise or services offered by any party, including, but not limited to the purchase terms, payment terms, warranties, guarantees, maintenance and delivery terms relating to such transactions, are agreed to solely between the seller or purchaser of such merchandise and services and you. WE MAKE NO WARRANTY REGARDING ANY TRANSACTIONS EXECUTED THROUGH, OR IN CONNECTION WITH THIS SITE, AND YOU UNDERSTAND AND AGREE THAT SUCH TRANSACTIONS ARE CONDUCTED ENTIRELY AT YOUR OWN RISK. ANY WARRANTY THAT IS PROVIDED IN CONNECTION WITH ANY PRODUCTS, SERVICES, MATERIALS, OR INFORMATION AVAILABLE ON OR THROUGH THIS SITE FROM A THIRD PARTY IS PROVIDED SOLELY BY SUCH THIRD PARTY, AND NOT BY US OR ANY OTHER OF OUR AFFILIATES.
14. Mutual Indemnification.
14.1. Indemnification by The Flyer Box. The Flyer Box Club shall defend Subscriber against any claim, demand, suit, or proceeding (“Claim”) made or brought against Subscriber by a third party alleging that the use of the Platform as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify Subscriber for any damages finally awarded against Subscriber in connection with any such Claim; provided, that Subscriber (a) promptly gives The Flyer Box Club written notice of the Claim; (b) gives The Flyer Box Club sole control of the defense and settlement of the Claim; and (c) provides The Flyer Box Club all reasonable assistance, at Subscriber’s expense.
14.2. Indemnification by Subscriber. Subscriber shall defend The Flyer Box Club against any Claim made or brought against The Flyer Box Club by a third party (a) alleging that Subscriber’s Data, or Subscriber’s use of the Platform in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, or (b) in any other way relating to or arising from Subscriber’s Data, including but not limited to violations of CAN-SPAM, or a breach of Subscriber’s Responsibilities set forth in Section 2.3, and shall indemnify The Flyer Box Club for any damages finally awarded against, and for reasonable attorneys fees incurred by, The Flyer Box Club in connection with any such Claim; provided, that The Flyer Box (i) promptly gives Subscriber written notice of the Claim; (ii) gives Subscriber sole control of the defense and settlement of the Claim (provided that Subscriber may not settle any Claim unless the settlement unconditionally release The Flyer Box Club of all liability); and (iii) provides to Subscriber all reasonable assistance, at The Flyer Box Club’s expense.
14.3. Exclusive Remedy. This Section 14 (Mutual Indemnification) 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.
15. Limitation of LIABILITY.
IN NO EVENT SHALL The Flyer Box Club’s AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY SUBSCRIBER HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF $1,000 OR THE AMOUNT PAID BY SUBSCRIBER HEREUNDER IN THE three (3) MONTHS PRECEDING THE INCIDENT.
IN NO EVENT SHALL WE OR OUR AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THIS SITE OR OF ANY WEB SITE REFERENCED OR LINKED TO FROM THIS SITE.
FURTHER, WE SHALL NOT BE LIABLE IN ANY WAY FOR THIRD PARTY GOODS AND SERVICES OFFERED THROUGH THIS SITE OR FOR ASSISTANCE IN CONDUCTING COMMERCIAL TRANSACTIONS THROUGH THIS SITE, INCLUDING WITHOUT LIMITATION THE PROCESSING OF ORDERS.
17.1. 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. Subscriber’s Confidential Information shall include its Data; The Flyer Box Club’s Confidential Information shall include the Platform; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Subscriber’s Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
17.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its 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.
17.4. 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 notice 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.
18. Term and Cancellation of Subscription.
18.1. Term. This Agreement will commence on the date listed on the confirmation email sent to Subscriber and, unless Subscriber is currently under a month-to-month subscription, will continue for a period of twelve (12) months (the “Initial Term”) and will automatically renew for additional one-month terms (each, a “Renewal Term”) unless either party notifies the other party of its intent to not renew at least thirty (30) days prior to the end of the Initial Term or the then current Renewal Term. The Initial Term and all such Renewal Terms are collectively referred to as the “Term.”
18.2. Cancellation of Subscription. If Subscriber elects to cancel its subscription to the Platform, Subscriber must call The Flyer Box Club at (512) 730-1236 and speak with a customer service representative, who will confirm cancellation via email. Cancellation and termination of this Agreement will be effective within five (5) business days of receipt of the email, if Subscriber cancels during the Initial Term, and within thirty (30) days if Subscriber cancels within any Renewal Term or other month-to-month subscription. The Flyer Box reserves the right to suspend Subscriber’s access to the Platform and terminate this Agreement at any time upon notice to Subscriber.
18.3. Effect of Termination. In no event shall termination relieve Subscriber of the obligation to pay any Fees payable to The Flyer Box Club for the period prior to the effective date of termination. If the effective date of termination is prior to the end of the subscription month, Fees for such partial month will be prorated. If Subscriber cancels its subscription prior to the expiration of the Initial Term, Subscriber agrees to pay an early termination fee of 50% of the Fees payable during the remainder of the Initial Term. If Subscriber prepaid any Fees, The Flyer Box Club will refund to Subscriber such prepaid Fees covering the remainder of the term of all subscriptions after the effective date of termination; provided that if Subscriber received a prepayment discount, the amount refunded will be less any applicable discount for the periods prior to the effective date of termination.
19. General Provisions.
19.1. Governing Law; Venue. This Agreement shall be governed by Texas law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims, or causes of action arising out of or in connection with this Agreement or the Platform shall be subject to the exclusive jurisdiction of the state and federal courts located in Austin, Texas.
19.2. Waiver of Jury Trial. 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.
19.3. Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Subscriber shall not permit Users to access or use the Platform in violation of any U.S. export embargo, prohibition or restriction.
19.5. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
19.6. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
19.7. 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.
19.8. Attorney Fees. Subscriber shall pay on demand all of The Flyer Box Club’s reasonable attorney fees and other costs incurred by The Flyer Box Club to collect any Fees or charges due The Flyer Box Club under this Agreement.
19.9. 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 (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, to its Affiliate or in connection with any 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. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
19.10. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or attachment hereto, the terms of this Agreement shall prevail.
19.11. Survival. Rights and obligations under this Agreement which by their nature should survive, including, but not limited to any and all payment obligations invoiced prior to the termination or expiration hereof, will remain in effect after termination or expiration hereof.
19.12. Amendment. This Agreement will not be changed, modified, or amended except by a writing executed by both parties or if Subscriber electronically accepts a subsequent agreement or amendment delivered by The Flyer Box Club via the Platform.
19.13. Force Majeure. Neither party shall be in default for failing to perform any obligation hereunder, other than the payment of monies, if such failure is caused solely by supervening conditions beyond the parties’ respective control, including without limitation acts of God, civil commotion, strikes, terrorism, failure of third party networking equipment, failure of the public Internet, power outages, labor disputes or governmental demands or restrictions.