Promo Social Terms and Conditions

 

 

TERMS AND CONDITIONS

 

Of the Agreement to Provide Technology and Services

 

Promo Social LLC, a limited liability company organized under the laws of Arizona, and its successors, are hereinafter collectively referred to as “PS”.

The party granted certain rights in relation to PS products or services is referred to herein as “Purchaser”.  

“Consumers” are customers or patrons of the Purchaser who utilize the Technology and Services offered by Purchaser under the Agreement.

 “Device” refers to any type of photo capture or data capture hardware, including but not limited to a Kiosk, Event Station, PDA, Tablet, iPad, Smartphone, Mobile Device, or Mobile FotoZap® Camera Unit, whether purchased or leased from PS, or owned by the Purchaser or any Consumer, and that is used to capture data or photos which are, in turn, uploaded to the PS web Services.

“Licensed Equipment” refers to any Device that is leased by PS, or any other hardware or physical equipment of any kind provided to Purchaser by PS, for lease or rental usage, during the term of the agreement.

“Patents” refers to U.S. Patent Nos. 6,085,195, 6,519,596 B1, and 6,523,034 B1, and any other patents applied for and related to the Technology and Services or licensed to PS, its successors, predecessors, or assigns.

“Technology and Services” refers to any services, product, equipment, hardware, web site services, the Licensed Program, or other software, the Licensed Equipment, instruction manuals, or any other item provided by PS to Purchaser.

These Terms and Conditions are intended as a part of the Campaign Details and incorporated therein by this reference and together the Campaign Details and the Terms and Conditions constitute the agreement between you and PS (“hereinafter referred to as the “Agreement”). The Agreement may contain additional information including but not limited to the scope of the contracted service, points of contact, date(s) of event, and other pertinent data set forth in the Campaign Details. By using, or agreeing to use, the Technology and Services, Purchaser agrees to be bound by the Agreement including these Terms and Conditions.

 

LICENSE GRANT

 

In accordance with the provisions of the Agreement, PS hereby grants to Purchaser a limited, nonexclusive, nontransferable license to use the Patents, the Licensed Program and the Licensed Equipment, subject to purchase and payment of the License Fee by Purchaser to PS at the price and terms outlined in the signed Agreement[JP1]  (the “License”) during the Term for the express purpose of and in connection with image and photography based brand marketing programs with Purchaser’s Consumers. No refunds are issued on License, once payment is made. If a refund is considered, for any reason, it would first be applied in full to any discount awarded at that time the Agreement was signed. Purchaser agrees not to sublicense, distribute, reproduce, copy, incorporate or modify the User Licenses, Licensed Program or the Licensed Equipment for any purpose.  Providing Consumers access to photos is a permissible use of the License by Purchaser.

 

PROPRIETARY RIGHTS

 

PS has proprietary rights to all content related to the Technology and Services under the License including the trademarks, service marks, designs, text, graphics, pictures, video, information, the APIs, software, music, sound and other files, and their selection and arrangement (the "Proprietary Property").  Purchaser agrees not to utilize the Proprietary Property in violation of the express purpose of the License or the provisions of this Agreement.

 

WEBSITE AND CONTENT

 

Purchaser may use the Technology and Services to customize its photo and website branding.  Purchaser is solely responsible for the photos, profiles (including names, images, and likenesses), messages, notes, text, information, music, video, advertisements, listings, communications, comments, postings, links and other content that Purchaser upload, publish or display (each a "Post") related in any way related to its use of the Technology and Services.  Purchaser represents and warrants that no Post will violate or infringe upon the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary rights; or contain libelous, defamatory, harassing, vulgar, obscene or otherwise unlawful material.

 

MOBILE SERVICES

 

Use of the Technology and Services includes uses that are available via Devices for which the respective carriers for Purchaser and Consumers will assess charges for access in accordance with the applicable messaging, data and other rates and fees apply.  In addition, Purchaser should confirm that the Technology and Services are not limited or restricted with the carrier(s) in any manner that will prohibit satisfactory operation.  By using Devices for the Technology and Services, Purchaser agrees that PS may communicate with Purchaser and Consumers electronically (and otherwise with Purchaser) and that certain information about such usage will be communicated to PS.

 

WARRANTY

 

While PS shall use all commercially reasonable efforts to ensure that the Technology and Services are accurate and up to date, it makes no express or implied warranty or representation that the Technology and Services and related information are accurate or up to date or that they are suitable for any particular purpose, and will not be liable for errors or omissions contained therein or their consequences. PS does not warrant that the Technology and Services will be uninterrupted or error free.

 

Except as may be otherwise provided herein, the technology and services and any information provided by PS are provided “as is” and “as available.” Purchaser assumes all risk for using, and for any results it obtains, or liability it incurs, by or as a result of using any of the Technology and Services, or from using any information Purchaser obtains from using the Technology and Services, or for failing to access the Technology and Services on any occasion. PS does not guarantee the prevention of the loss or alteration of, or improper access to, Purchasers information or computer system. PS is not responsible for transmission errors, corruption of data during transmission, lack of available onsite connectivity, slow data transmission speeds due to large crowds at events, or the security of Purchaser’s information carried over any telecommunications or data communications facilities. PS makes no guarantee or assurances of any results from the use of the Technology and Services.  Notwithstanding anything to the contrary contained herein, the liability of PS to Purchaser for any cause whatsoever, regardless of the form of the action, will at all times be limited to the amount paid, if any, by Purchaser to PS for the Technology and Services, but in no event will the liability of PS to Purchaser exceed $1,000.

 

Certain state laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages.  If these laws apply to Purchaser, some or all of the above disclaimers, exclusions or limitations may not apply to Purchaser, and Purchaser may have additional rights.

 

Except as provided herein, it shall be the responsibility of Purchaser to ensure that its hardware and system software (including but not limited to any interfaces) used are compatible with the Technology and Services. PS will not be responsible for any expenditure that may be incurred by Purchaser in modifying its hardware and system software to enable it to receive or accommodate the Technology and Services. Purchaser will use all reasonable efforts to keep the Technology and Services in a secure environment and prevent access that would violate the provisions of the Agreement. PM will not be responsible for any replacement of any data that is lost or damaged as a result of using the Technology and Services.

 

LIMITATION OF LIABILITY

 

In no event will PS, its officers, shareholders, directors, members, managers, employees, subsidiaries, consultants, contractors, parents, agents or affiliates be liable for any damages resulting from: costs of procurement of substitute products, technology or services, loss of revenue, loss of profits, loss of contracts, loss of data or software programs or loss of use of data or software programs, loss of anticipated savings, interruption in the use or availability of data, stoppage to other work, loss of goodwill, or any third party claims; or any losses or damages that are indirect or secondary consequences of any act or omission of another party, its employees, representatives or sub-contractors, whether such losses or damages were reasonably foreseeable or actually foreseen; or any special, indirect, consequential, punitive, exemplary or incidental damages; or any claims against Purchaser by any other party; whether direct or indirect even if PS has been advised of the possibility of that loss or damage arising, however caused and on any theory of liability, arising from or related to the Agreement in any way. This limitation shall apply even if PS has been advised of the possibility of such damages, and notwithstanding any failure of essential purpose of any limited remedy herein provided. Purchaser agrees that PS’s liability, regardless of the form of action, shall not exceed the price paid, if any, by Purchaser for any Technology and Services provided under the Agreement.

 

INDEMNIFICATION

 

Purchaser agrees to defend, indemnify, and hold harmless PS, its officers, shareholders, directors, members, managers, employees, subsidiaries, consultants, contractors, Purchasers, parents, agents, affiliates, or clients from and against any and all claims, actions or demands including without limitation, legal and accounting fees, brought by third parties and arising from or related to the Agreement and/or the provision of Technology and Services of performance hereof, including but not limited to any actions brought by Consumers of Purchaser and other individuals who have had their photographs taken. PS shall provide notice to Purchaser promptly of any such claim, suit, or proceeding and shall assist Purchaser, at Purchaser’s expense, in defending any such claim, suit or proceeding. Purchaser further agrees to take all necessary precautions to prevent injury to any persons (including employees of PS) or damage to property (including PS property) during the term of this Agreement and shall indemnify and hold harmless PS and its officers, agents, directors, members, managers and employees against any claim, loss, judgment, expense (including reasonable attorneys’ and expert witnesses’ fees and costs) and injury to person or property (including death) resulting in any way from any act, omission or negligence on the part of Purchaser in the performance or failure to perform the scope of work under this Agreement, excepting only those losses which are due solely and directly to PS negligence. Should PS permit Purchaser to use any of PS’s equipment, tools or facilities during the term of this Agreement, such permission will be gratuitous and Purchaser shall indemnify and hold harmless PS and its officers, agents, directors, and employees from and against any claim, loss, judgment, expense (including reasonable attorneys’ and expert witnesses’ fees and costs) and injury to person or property (including death) arising out of the use of any such equipment, tools, or facilities, excepting only those losses which are caused solely by PS or directly related to PS’s sole negligence.

 

EQUIPMENT RETURN OR REPLACEMENT

 

As applicable, Purchaser agrees to return the Licensed Equipment to PS within fifteen (15) days of the end of Term If Purchaser elects to continue to keep the Licensed Equipment in their possession beyond 15 days after the end of the Term, then Purchaser agrees to begin paying a monthly usage fee of $500 per device (the “MUF”), such fees to be billed by PS. Such continued usage or possession will be subject to all the provisions of the Agreement subject to the MUF. Should the Licensed Equipment be lost or stolen, Purchaser agrees to pay the cost to replace the lost or stolen Licensed Equipment (the “Replacement Price”). Purchaser is also responsible for any damage to the Licensed Equipment beyond normal wear and tear. In the event of any damage, Purchaser agrees to pay for any necessary repairs, or if repair is not feasible, then the Purchaser agrees to pay the Replacement Price. The Replacement Price is the current PS list price of an identical or equivalent backup device.

 

AGREEMENT NOT TO REVERSE ENGINEER OR CONNECT TO OTHER SYSTEMS

 

Purchaser shall not attempt to reverse engineer, decompile, or otherwise attempt to derive the source code of the Technology and Services, Licensed Equipment, system peripherals, or camera firmware. Any Leased Equipment for use is designed for use exclusively for the Technology and Services. Purchaser agrees that it won't make any modifications to the Leased Equipment or the Technology and Services and will not use the Leased Equipment with any other system, and will at no time upload photos to any other system. The Purchaser agrees that any breach of this clause will cause substantial and irreparable damages to PS, and, therefore, in the event of any such breach, in addition to other remedies which may be available, Promo Social shall have the right to seek specific performance and other injunctive and equitable relief and to have all costs and expenses, including reasonable attorney's fees incurred in connection therewith, paid by the Purchaser.

 

AGREEMENT NOT TO SOLICIT PS SUBCONTRACTORS AND MANUFACTURERS

 

For the Term of the Agreement and for 1 year thereafter, Purchaser agrees not to initiate or maintain communications in any manner with any third party then in privity of contract with PS, (including but not limited to any PS member, manager, employee, agent, subcontractor and/or manufacturer), for the purpose of soliciting such party for commercial benefit or developing business in competition with PS.

 

MUTUAL NON-DISCLOSURE AGREEMENT

 

Each party (“Receiving Party”) agrees to keep confidential and not disclose or use except in performance of its obligations under this Agreement, confidential or proprietary information related to the other party’s (“Disclosing Party”) technology or business that the Receiving Party learns in connection with this Agreement and any other information received from the other party that reasonably would be understood to be confidential or proprietary (collectively, the “Confidential Information”). Each party shall use reasonable precautions to protect the other’s Confidential Information. “Confidential Information” shall not include information the Receiving Party can document (a) is in or (through no improper action or inaction by the Receiving Party or any affiliate, agent or employee) enters the public domain (and is readily available without substantial effort), (b) was rightfully in its possession or known by the Receiving Party prior to receipt from the Disclosing Party, (c) was rightfully disclosed to the Receiving Party by another person without restriction, or (d) is independently developed by the Receiving Party or its employees, agents or representatives of the receiving party as a result of its own efforts, and without the knowledge or benefit of the Confidential Information received from the Disclosing Party. Either party may disclose any Confidential Information as required to satisfy any law, regulation, governmental request, or court order.

 

RELATIONSHIP OF THE PARTIES

 

The parties hereto expressly understand and agree that each party is an independent contractor in the performance of each and every part of this Agreement, and is solely responsible for all of its officers, directors, members, managers, employees and agents and its labor costs and expenses arising in connection therewith. Neither party nor its officers, directors, members, managers, agents or employees are the representatives of the other party for any purpose and neither party has the power or authority as agent, employee or any other capacity to represent, act for, bind or otherwise create or assume any obligation on behalf of the other party for any purpose whatsoever.

 

SHIPPING

Charges for express shipping and all shipping charges for printed items will be billed at cost plus 20% unless the shipping charges are specifically included in the written proposal. If Purchaser provides a valid shipping account number and PS ships goods with that account number, those shipping charges will not be billed to Purchaser. Print items commonly include Photo Access Cards and Photo Backdrops. Any print orders placed (or graphics approved) within two weeks of required delivery date are likely to incur rush shipping charges.

 

TERMINATION AND LATE PAYMENT

 

Purchaser agrees to pay per the provisions stipulated in the Campaign Details. In the event payment is not received by PS on terms indicated on the invoice, PS may terminate the Agreement if payment is not made upon 15 days written notice to Purchaser.  In addition, Purchaser agrees to pay interest in the amount of one and one half percent (1.5%) per month, or the maximum allowed by law, whichever is lower, on any unpaid balance, beginning 15 days after the initial due date.

 

PAYMENT FOR ADDITIONAL USER LICENSES

 

If Purchaser continues to access the Technology and Services and upload photos beyond the scope of the Agreement or the Term, or adds additional users without signed authorization and payment, then Purchaser agrees to pay for continued use, upon demand by PS, at the current standard rates charged by PS, or at $600 per device, per month, whichever is less.

 

INCIDENTAL EXPENSES

 

Purchaser shall reimburse PS for any reasonable travel, administrative, and out-of-pocket expenses incurred in conjunction with the Technology and Services. PS will seek prior authorization from Purchaser before incurring any additional (off-quote) reimbursable expenses in excess of One Hundred Dollars ($100.00). All project related expenses are charged at a rate of 118% of the cost of the expense.[THIS SEEMS INCONSISTENT WITH THE AMOUNT IN THE CAMPAIGN DETAILS] For example, with Leased Equipment if the Purchaser is leasing a FotoZap App device such as a smartphone or tablet, directly from PS, it is leased with the understanding that PS’s lease charge will cover the cost of photo uploads up to 1,000 per month to the FotoZap system. Charges incurred through any additional use, of any nature, such as phone usage, web surfing, App downloads or media charges not authorized and agreed to by further written agreement with PS, will be the sole responsibility of the Purchaser.

Electronic Signatures in Global and National Commerce Act/Uniform Electronic Transactions Act

The federal Electronic Signatures in Global and National Commerce Act (“ESIGN”) and similar state laws, particularly the Uniform Electronic Transactions Act (“UETA”), authorize the creation of legally binding and enforceable agreements utilizing electronic records and signatures. ESIGN and UETA require businesses that want to use electronic records or signatures in consumer transactions to obtain the consumer’s consent to receive information electronically. PS obtains his or her consent to transact business electronically and maintain electronic records in compliance with ESIGN and UETA requirements.  By using the Technology and Service, you hereby consent (i) to this Agreement, (ii) to transact business with us electronically and (ii) to our maintenance of electronic records in compliance with ESIGN and UETA requirements.

 

GENERAL PROVISIONS

 

This Agreement is governed by and interpreted under the laws of the State of Arizona without reference to its conflicts of laws rules. Any dispute arising from or related to the Agreement which leads to a proceeding to resolve such dispute will be resolved by binding arbitration pursuant to then current commercial arbitration rules of the American Arbitration Association in the State of Arizona before a sole arbitrator. Neither Party may assign this Agreement or any rights or obligations hereunder without the prior written consent of the other Party. Nothing prevents assignment of this Agreement through the disposition of substantially all the assets of either party by way of sale, merger, consolidation, or acquisition. No modification to this Agreement, nor any waiver of any rights, shall be effective unless assented to in writing by the party to be charged and the waiver of any breach or default shall not constitute a waiver of any other right hereunder or any subsequent breach or default. Any required notices hereunder shall be given in writing at the address of each party set forth in the Agreement. PS shall maintain at PS’s own expense Comprehensive General Liability Insurance that shall provide coverage for liabilities or claims for damages resulting solely from services performed or undertaken by PS hereunder. Paragraph headings herein are for purposes of identification only and are not to be used in interpretation. This Agreement constitutes the entire agreement and understanding between the parties concerning the subject matter hereof and supersedes all prior agreements and understandings of the parties with respect thereto.  This Agreement may be changed, amended or supplemented only by mutual agreement of the parties in writing.