Terms of Service
The SEELOZ SERVICE AGREEMENT (the "Agreement") is entered into as of the "Effective Date" by and between Seeloz Inc. ("Seeloz"), and a company willing to use the "Seeloz Services", referred to as "Customer". Seeloz and Customer are each individually a "Party" and collectively, the "Parties".
The Parties to this Agreement hereby agree on the following terms:
1. ACCESS AND USE.
1.1 Access Right. Subject to the terms and conditions of this Agreement, Seeloz grants to Customer during the initial Subscription Period (defined below) and each subsequent Subscription Period a nonexclusive, nontransferable, non-sub licensable right to access and use the Service solely for Customer's Hyper-Local Targeting Program (fully described in Section 1.1 of the Agreement). Customer may not use the Service for any other purpose or for the benefit of any other party, except as may be permitted in writing by Seeloz. This access right terminates at the end of the final Subscription Period or earlier termination of the Service in accordance with this Agreement.
1.2 Service Availability. Seeloz shall make the Service available 24 hours a day, 7 days a week, except during scheduled maintenance windows (which maintenance windows shall be between 11 p.m. and 3 a.m. Pacific time) and excluding up to 0.1% downtime due to unexpected events each month. Notwithstanding the foregoing, Customer acknowledges that Customer's ability to access and use the Service may also be affected by resources and factors outside the control of Seeloz, including Customer's access to the Internet.
1.3 Mode of Access. Customer shall not access or attempt to access the Service by any means other than the web and mobile device interfaces provided by Seeloz, or attempt to circumvent or disable any access or use restrictions put in place by Seeloz.
1.4 Other Restrictions. Customer shall use the Service only for purposes and in a manner that are permitted by applicable laws, rules and regulations. Customer shall not (and shall not attempt to) decompile, reverse engineer or otherwise derive or discover the source code of the software underlying the Service, or use the Service in a service bureau or other resale capacity.
1.5 Account Information. Customer shall provide Seeloz with complete and accurate account, billing and payment information and keep such information up to date during each Subscription Period.
1.6 Passwords and Account Security. Customer is responsible for maintaining the security and confidentiality of all passwords associated with Customer's account, and for all activities that occur under Customer's account. If Customer becomes aware of any unauthorized or illegal use of any such password or account, Customer shall immediately notify Seeloz.
2.1 Technical Support. Seeloz will provide reasonable technical support by telephone and email during the hours of 7 a.m. to 7 p.m. Pacific Time to assist in Customer's access to and use of the Service. Customer may contact Seeloz at 408-757-0505 or firstname.lastname@example.org. Seeloz shall promptly respond to and complete any necessary technical repairs within a reasonable amount of time.
2.2 Software Updates. Seeloz may update from time to time the server-side software, and web and mobile device interfaces underlying the Service. Such updates are intended to improve or enhance the Service and may take the form of bug fixes, program code updates and enhancements.
3. CONTENT AND DATA.
3.1 Input Data. As between the Parties hereto, Customer shall own and, other than to the limited extent provided in this Section 5.1, have sole control over any and all data transmitted to the Service by Customer or by other persons communicating with Customer via the Service (collectively, the "Input Data"). Customer acknowledges and agrees that as between the Parties hereto, all Input Data is the responsibility of Customer; provided, however, that (i) Seeloz and its contractors shall keep all Input Data confidential at all times and shall have no right to use or access Customer's Input Data, including in aggregated form, except in connection with providing the Service to Customer and (ii) Seeloz shall have the right (but not the obligation) in its discretion to remove from the Service any Input Data that violates this Agreement or Seeloz' policies and procedures, or is otherwise objectionable. At no time shall the Input Data be accessible to or shared with any other party by Seeloz, including other customers of Seeloz, but excluding Seeloz' contractors who are subject to appropriate confidentiality obligations.
3.2 Security. Customer acknowledges that servers and databases are maintained by or on behalf of Seeloz to store the Input Data and other data processed by the Service. Seeloz employs reasonable technological and operational security procedures intended to protect such data from loss, misuse, alteration, or destruction. While Customer acknowledges that no security measure can fully guarantee against compromise of the servers and databases underlying the Service, Seeloz shall endeavor at all times to keep all Input Data confidential and to prevent any other party from accessing Customer's data, including other customers of Seeloz, but excluding Seeloz' contractors who are subject to appropriate confidentiality obligations. At the end of the final Subscription Period or earlier termination of the Service in accordance with this Agreement, all Input Data shall be provided to Customer by Seeloz in a form that Customer shall reasonably request, and Seeloz shall delete all Input Data from the servers and databases maintained by or on behalf of Seeloz.
4. INTELLECTUAL PROPERTY RIGHTS.
4.1 Reservation of Rights. All rights not expressly granted herein are reserved by Seeloz, including, but not limited to, the unrestricted right to grant access to the Service to third parties in any form anywhere. Nothing in this Agreement is intended by the Parties to constitute a sale of the software or associated documentation underlying the Service, or any derivations thereof. Seeloz reserves the right to modify the Service in Seeloz' discretion, provided such modification does not adversely affect functionality or accessibility of the Service.
4.2 Title. The Service (including the software and associated documentation underlying the Service) are the valuable proprietary and trade secret information and property of Seeloz or its licensors. Title, ownership rights and intellectual property rights, including but not limited to, copyright and patent rights, in the Service, and all derivatives thereof, shall remain with Seeloz and its licensors. Customer acknowledges the ownership and intellectual property rights of Seeloz and will not take any action to jeopardize, limit or interfere in any manner with such ownership or other rights.
4.3 Marks. The trademarks, logos and service marks (the "Marks") displayed in the Service and on Seeloz' website are the property or Seeloz or third parties. Customer shall not use any Mark without the prior written consent of Seeloz or applicable third-party owner of the Mark.
5.1 Termination. Seeloz may terminate this Agreement (and Customer's access to the Service) at any time if Customer has failed to pay the Access Fee for any particular month when due and failed to make such payment within 30 days after receiving a reminder from Seeloz in writing. Either Party may also terminate the Service prior to the end of any Subscription Period if the other Party has committed any other material breach of this Agreement and failed to cure such material breach within 30 days after receiving written notice of the breach from the non-breaching Party. Customer may terminate this Agreement at any time with 30 days' written notice to Seeloz, with or without cause.
5.2 Effects of Termination or Expiration. Upon the expiration or termination of this Agreement, Seeloz will disable Customer's online access to the Service, and upon Customer's request deliver to Customer files containing the Input Data of Customer then in Seeloz' possession in a form that Customer shall reasonably request, and Seeloz shall delete all Input Data from the servers and databases maintained by or on behalf of Seeloz. Termination of this Agreement will not relieve either Party from its obligation to comply with any terms of this Agreement that call for performance prior or subsequent to the termination date of the Service, including Customer's obligation to pay for access to the Service for periods prior to the termination date.
6. LIMITATION OF LIABILITY.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS, LOST DATA, LOSS OF BUSINESS, GOODWILL OR REPUTATION, OR FOR ANY OTHER CONSEQUENTIAL, INDIRECT, INCIDENTAL OR SPECIAL DAMAGES OF ANY KIND EVEN IF SEELOZ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL SEELOZ' TOTAL CUMULATIVE LIABILITY UNDER THIS AGREEMENT FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING TORT, CONTRACT, NEGLIGENCE AND STRICT LIABILITY, EXCEED THE AMOUNTS PAID TO SEELOZ BY CUSTOMER UNDER THIS AGREEMENT OVER THE PRIOR 12-MONTH PERIOD.
Subject to the limitations contained in this Agreement, Seeloz shall defend, indemnify and hold harmless Customer, its affiliates and their respective officers, directors, members, employees and agents and any lender to Customer from and against all claims by third parties arising out of or relating in any way to infringement or misappropriation of any third-party copyrights or trade secrets, and all associated losses, costs, damages, and settlements, including reasonable legal fees and expenses. In the event of a claim in respect of which Customer seeks indemnification from Seeloz under this Section 10, Customer shall promptly notify Seeloz in writing of the claim, cooperate with Seeloz in defending or settling the claim at Seeloz' expense, and allow Seeloz to control the defense and settlement of the claim, including the selection of attorneys.
8. ARBITRATION OF DISPUTES.
Seeloz and Customer agree that all disputes, controversies or claims which arise out of or relate in any way to the Service or this Agreement shall be finally resolved by arbitration held in Santa Clara, California, and conducted by a single arbitrator according to the Commercial Arbitration Rules of the American Arbitration Association using expedited procedures. The arbitrator will have no authority to award any damages that are excluded by this Agreement. Any award by the arbitrator may be enforced in any court having jurisdiction. Customer expressly agrees that Seeloz may seek injunctive relief by a court pending an award in arbitration and shall not, by doing so, be held to have infringed the powers of the arbitrator or breached its agreement to arbitrate.
9. GENERAL PROVISIONS.
This Agreement represents the entire agreement between Seeloz and Customer with respect to Customer's access to and use of the Service. This Agreement shall be governed by the laws of the State of California and any controlling U.S. federal laws, exclusive of choice of law rules. If either Party waives or modifies any term or condition of this Agreement, that will not void, waive or change any other term or condition. If either Party waives a default by the other, that does not mean that either Party will waive future or other defaults. Neither Party may assign or otherwise transfer this Agreement or any rights granted under it without the prior written consent of the other Party except that Seeloz may assign this Agreement to a buyer in connection with a sale of all or substantially all of the assets of Seeloz (whether by merger, sale of stock, sale of assets or otherwise). Each Party's relationship to the other is that of an independent contractor, and neither Party is an agent or partner of the other. If any part of this Agreement, for any reason, is declared to be invalid, it shall be reformed to the minimum extent necessary in order for such part to remain in effect and be enforceable in accordance with applicable law, and the remaining provisions of this Agreement shall remain in full force and effect. All notices under this Agreement must be delivered in writing by courier or by certified or registered mail (postage prepaid and return receipt requested) to the other Party at the address set forth above, and will be effective upon receipt or three business days after being deposited in the mail, whichever occurs sooner. This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.
10. RETAILER AGREEMENT FOR CLOVER APP MARKET CUSTOMERS.
Clover and its Affiliates do not have any responsibility or liability to the Customer in any way with respect to the Customer usage of the MixaWallet Application or Seeloz Inc. technologies.
A Customer may cancel a subscription at any time before the end of the applicable billing cycle, with the cancellation becoming effective immediately before the next billing cycle. For example, a Customer has a monthly subscription, and was last billed on 15th day of a month, the Customer may cancel that subscription at any time during any month of the subscription, and the subscription will be cancelled as of 11:59pm PT on the 14th of the month following cancellation.
If a Customer cancels its subscription, the Customer will: (i) not receive a refund for the billing period during which the Customer cancels its subscription and (ii) be able to access its subscription and receive issues and updates of the relevant subscription until the subscription termination date.
Seeloz will provide thirty (30) days notice should it choose to remove the MixaWallet App from the App Market. Should Seeloz choose to cease providing service through the MixaWallet App, it will provide reasonable advance notice to Merchants of the removal or cessation of service to enable Merchants who obtained the MixaWallet App to extract their data from the MixaWallet App.
11. TRIAL SUBSCRIPTIONS FOR CLOVER APP MARKET CUSTOMERS.
All Clover App store users are eligible for a one time, thirty (30) trial subscription. There are no set up fees to begin using the MixaWallet App.
Upon completion of the trial a MixaWallet, the Customer has the option of subscribing to the service at the monthly per location rate marked in the Clover App Agreement.
Should a Trial Subscription Customer not subscribe to the MixaWallet App or a subscribing Customer cancel its subscription, we will keep the data in place for a period of 30 days, afterwards the Customer data will be securely destroyed and no longer accessible.