The terms and conditions that govern the use of the Apptizer applications and services described herein are set forth below. By clicking “I agree” where indicated, these terms and conditions (collectively, the “Agreement”) will govern the obligations and rights of Apptizer Inc. (“Apptizer”, “we”, “our”, “ours” and the like) and you (“Merchant”, “you”, “yours”, and the like) and you and we hereby agree as follows:
This Agreement governs your use of the following Apptizer’s software applications and services (as further described herein, the “Services”):
Using our Services requires an Apptizer ID. Your Apptizer ID is valuable, and you are responsible for maintaining its confidentiality and security. Apptizer is not responsible for any losses arising from the unauthorized use of your Apptizer ID, any of your Customers’ Apptizer ID, the Services or the data and other information that you make available to Customers through the Services (“Content”). Please contact Apptizer if you suspect that your Apptizer ID has been compromised. Your use of the Services and Content must follow the requirements set forth in this Agreement and you are solely responsible for the compliance of your use and your Customers’ use of the Services in compliance with all applicable laws and regulations. Any other use of the Services and Content is a material breach of this Agreement. Apptizer may monitor your use of the Services and Content to ensure that you are following these requirements. You may use the Services and Content only in connection with the receipt of Services. It is your responsibility not to lose, destroy, or damage Content once downloaded. We encourage you to back up your Content and your Customers’ Content regularly. You may not tamper with or circumvent any security technology included with the Services. You may access our Services only using Apptizer’s software, and may not modify or use modified versions of such software. Apptizer is not responsible for any copyright or intellectual property infringements related to your or your Customers’ Content. We do not claim any intellectual property right over the material you sell or display in Apptizer. By uploading Content into the Services, you agree to allow any mobile user who downloads your application or a user on your self ordering kiosk to view your product details and Content, and you agree to indemnify and hold Apptizer harmless from any claims of copyright infringement, intellectual property infringement, or any other claims with regard to such Content, product supplied or dispensed. Apptizer reserves the right to store and display your Content and product details, to review the Content you submitted, and to remove items, products or Content at any time.
The Services includes certain services that are available via a mobile device, tablet or any other electronic device, including (i) the ability to upload Content to the Services via an electronic device, (ii) the ability to browse and otherwise access the Services from an electronic device and (iii) the ability to access certain features through an application downloaded and installed on an electronic device (collectively, the “Mobile Services”). Downloading, installing, or using certain Mobile Services may be prohibited or restricted by your Customers’ carrier, and not all Mobile Services may work with all carriers or devices. You agree that we may communicate with you and your Customers by SMS, MMS, text message or other electronic means to your or your Customers’ electronic device and that certain information about your and your Customers’ usage of the Mobile Services may be communicated to us.
You agree to pay for the Services as set forth on the pricing schedule attached to this Agreement. We may modify such pricing upon written notice to you. You are responsible for paying for the Services used by you and your Customers, regardless of whether you collect any fees for the Services from your Customers, and regardless of any termination of this Agreement for any reason.
The Services and Mobile Services are licensed, not sold, to you. Apptizer reserves all rights in and to the Services and Mobile Services not expressly granted to you under this Agreement. Apptizer grants to you a nontransferable license to use the Services as permitted by the requirements of this Agreement. You may not transfer, redistribute or sublicense the Services. You may not copy (except as permitted by this license and the Agreement), reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Services or Mobile Services, any updates, or any part thereof except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the Services or Mobile Services.
APPTIZER MAKES NO WARRANTY OR REPRESENTATION WITH REGARD TO THE APPLICABILITY OF ANY FEDERAL, STATE OR LOCAL LAW TO THE DELIVERY OR USE OF THE SERVICES OR THE MOBILE SERVICES. MERCHANT UNDERSTANDS AND AGREES THAT MERCHANT IS SOLELY RESPONSIBLE FOR ITS USE OF THE SERVICES, CONTENT, PRODUCTS SUPPLIED OR DISPENSED AND THE MOBILE SERVICES IN COMPLIANCE WITH ALL APPLICABLE LAW, AND WILL INDEMNIFY AND HOLD APPTIZER HARMLESS FROM ANY BREACH THEREOF.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY APPTIZER OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. APPTIZER DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR OR YOUR CUSTOMERS’ USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, AND YOU AGREE THAT FROM TIME TO TIME APPTIZER MAY REMOVE THE SERVICES FOR INDEFINITE PERIODS OF TIME, CANCEL THE SERVICES AT ANY TIME, OR OTHERWISE LIMIT OR DISABLE YOUR ACCESS AND/OR YOUR CUSTOMERS’ ACCESS TO THE SERVICES WITHOUT NOTICE TO YOU. THE SERVICES AND ALL CONTENT DELIVERED TO YOU AND YOUR CUSTOMERS THROUGH THE SERVICES ARE (EXCEPT AS EXPRESSLY STATED BY HEREIN) PROVIDED "AS IS" AND "AS AVAILABLE" FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. IN NO CASE SHALL EITHER PARTY, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OR ANY CUSTOMERS’ USE OF ANY OF THE SERVICES OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OR YOUR CUSTOMERS’ USE OF THE SERVICES AND/OR CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES, EVEN IF ADVISED OF THEIR POSSIBILITY. APPTIZER DOES NOT REPRESENT OR GUARANTEE THAT THE SERVICES WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND YOU HEREBY RELEASE APPTIZER FROM ANY LIABILITY RELATING THERETO. In no event shall Apptizer’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose. You may not use or otherwise export or re-export the Services except as authorized by United States law. In particular, but without limitation, the Services may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department's Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By using the Services, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons.
This Agreement shall be effective when signed electronically or manually by the parties hereto and shall continue until termination as set forth herein. In the event that this Agreement should terminate for any reason, Merchant agrees to pay the fees remaining unpaid.
Either party may terminate this Agreement upon 10 days written notice to the other party. Any termination of this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination. Termination of this Agreement for any reason will not relieve you of your obligation hereunder to pay Apptizer the fees for usage of the Services of your Customers following such termination.
Neither party will use, copy, adapt, alter or part with possession of any information of the other which is disclosed or otherwise comes into its possession under or in relation to this Agreement and which is of a confidential nature. This obligation will not apply to information which the recipient can prove was in its possession at the date it was received or obtained or which the recipient obtains from some other person with good legal title to it or which is in or comes into the public domain otherwise than through the default or negligence of the recipient or which is independently developed by or for the recipient.
You (and also any third party for whom you operate an account or activity on the Services) agree to defend (at Apptizer’s request), indemnify and hold Apptizer harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation, reasonable attorney’s fees and costs, arising out of or in any way connected with any of the following (including as a result of your direct activities on the Services or those conducted on your behalf): (i) your Content or your access to or use of the Services; (ii) your product supplied or dispensed (iii) your breach or the alleged breach of this Agreement; (iv) your violation of any third-party right, including without limitation, any intellectual property right, copyright, trademarks, publicity, confidentiality, property or privacy right; (v) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental authorities; or (vi) any misrepresentation made by you. You shall cooperate as required by Apptizer in the defense of any claim.
You agree that all disputes between you and Apptizer will be resolved by binding, individual arbitration under the American Arbitration Association’s rules for arbitration of consumer-related disputes and you and Apptizer expressly waive trial by jury. This dispute resolution provision will be governed by the Federal Arbitration Act. In the event the American Arbitration Association is unwilling or unable to set a hearing date within one hundred and eighty (180) days of filing the case, then either Apptizer or you can elect to have the arbitration administered instead by the Judicial Arbitration and Mediation Services. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with this Agreement. If any provision of this Agreement is held to be unlawful, void, or for any reason unenforceable during arbitration or by a court of competent jurisdiction, then that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provisions. Apptizer’s failure to insist upon or enforce strict performance of any provision of this Agreement will be deemed a further or continuing waiver of such term or condition or any other term or condition. Apptizer reserves the right to change this dispute resolution provision, but any such changes will not apply to disputes arising before the effective date of the amendment.
This Agreement is governed by and construed in accordance with the laws of the State of New Jersey, without giving effect to any principles of conflicts of law AND WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. For any action at law or in equity relating to the arbitration provision of this Agreement, you agree to resolve any dispute you have with Apptizer exclusively in a state or federal court located in New Jersey, and to submit to the personal jurisdiction of the courts located in New Jersey for the purpose of litigating all disputes.
Sections 2 through 12 of this Agreement shall survive termination of the Agreement for any reason. Apptizer reserves the right at any time to modify this Agreement and to add new or additional terms or conditions on your use of the Services. Such modifications and additional terms and conditions will be effective immediately and incorporated into this Agreement. Your continued use of the Services will be deemed acceptance thereof. Apptizer is not responsible or liable for third party materials included within or linked from the Content or the Services. You agree that the Services, including but not limited to Content, graphics, user interface, audio clips, video clips, editorial content, and the scripts and software used to implement the Services, contain proprietary information and material that is owned by Apptizer and/or its licensors, and is protected by applicable intellectual property and other laws, including but not limited to copyright. You agree that you will not use such proprietary information or materials in any way whatsoever except in compliance with this Agreement. No portion of the Services may be reproduced in any form or by any means, except as expressly permitted by this Agreement. You agree not to modify, rent, loan, sell, or distribute the Services or our Content in any manner, and you shall not exploit the Services in any manner not expressly authorized. The Apptizer name, the Apptizer logo, and other Apptizer trademarks, service marks, graphics, and logos used in connection with the Services are trademarks or registered trademarks of Apptizer in the U.S. and other countries throughout the world.
You are granted no right or license with respect to any of the aforesaid trademarks. You agree that we may use your trademarks, service marks, graphics, logos, Content and all other information and data you provide to us or make available to us in connection with providing Services to you and promoting the proper use of the Services. This Agreement constitutes the entire agreement between you and Apptizer and governs your use of the Services, superseding any prior agreements with respect to the same subject matter between you and Apptizer. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party content, third-party software, or additional services. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. Apptizer’s failure to enforce any right or provisions in this Agreement will not constitute a waiver of such or any other provision. Apptizer will not be responsible for failures to fulfill any obligations due to causes beyond its control. You agree to comply with all local, state, federal, and national laws, statutes, ordinances, and regulations that apply to your use of the Services. Your use of the Services may also be subject to other laws. No Apptizer employee or agent has the authority to vary this Agreement. Apptizer may notify you with respect to the Services by sending an email message to your email address or a letter via postal mail to your mailing address, or by a posting on the Services. Notices shall become effective immediately. Apptizer may also contact you by email or push notification to send you additional information about the Services. You hereby grant Apptizer the right to take steps Apptizer believes are reasonably necessary or appropriate to enforce and/or verify compliance with any part of this Agreement. You agree that Apptizer has the right, without liability to you, to disclose any data and/or information to law enforcement authorities, government officials, and/or a third party, as Apptizer believes is reasonably necessary or appropriate to enforce and/or verify compliance with any part of this Agreement (including but not limited to Apptizer's right to cooperate with any legal process relating to your use of the Services and/or Content, and/or a third-party claim that your use of the Services and/or Content is unlawful and/or infringes such third party's rights).