Mobile Web Services End User License Agreement.

Transcription

1 Mobile Web Services End User License Agreement. 1. Purpose, Acceptance of Terms. This End User License Agreement ( Agreement ) applies to users of Deluxe s mobile web services ( Services ). As used herein, Deluxe Small Business Sales, Inc. Deluxe, Powered by Deluxe, Deluxe for Business, Provider, we, us, our or ours refers to Deluxe and you, your or yours refers to the customer purchasing the Services from us. Deluxe s general Terms of Use, Privacy Policy and Acceptable Use Policy which are available at and the documents and policies referred to herein are incorporated by reference into and made a part of this Agreement, unless they are expressly modified below. By accessing or using the Services you agree to be bound by this EULA, our Terms of Use, Privacy Policy and Acceptable Use Policy available at and to any additional applicable policies, guidelines, restrictions or rules that may be posted from time to time. All such additional posted guidelines, restrictions, or rules are incorporated herein by reference. Deluxe reserves the right to make changes to this EULA and the Services at any time without prior notice to you. We will provide you with notice of material changes to the EULA or the Services, if any. If you do not agree to the changes implemented by Deluxe your sole and exclusive remedy is to terminate your relationship with us as a customer of the Services. Unless explicitly stated otherwise, any new features or products that change, augment or enhance Deluxe s Service offerings will be subject to this Agreement. 2. Scope of the Agreement. The terms of this Agreement will apply to your use of the Services contained in the Service Package. The terms of the Agreement will control over any different or additional terms of any purchase order or other non-provider Mobile Web Services Package, and no terms included in any such purchase order or other non-provider Mobile Web Services Package shall apply to the Provider s Services. If you are obtaining or have obtained the our Services from a third party authorized by us ("Partner"), then the terms of this User Agreement shall apply to those Services. In the event of a conflict between the terms of any agreement executed between you and the Partner relative to our Services, the terms of this Agreement shall take precedence and be deemed controlling. 3. License Grant. Provider hereby grants to you, during the Subscription Term of the applicable Service Package, the nontransferable, non-exclusive, non-sublicenseable worldwide right to use the our Mobile Web Services and any of our Mobile Web Services Materials solely in connection with the Services, subject to the terms of the Agreement, including the online documentation for the Services. You are solely responsible for the User Content transmitted and displayed, via your Application, except for any third-party advertising that may be specified in your Service Package. 4. License Restrictions. The rights granted to you in the Agreement are subject to all of the following: You shall not license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose or otherwise commercially exploit or make the Services or the Mobile Web Services Materials available, to any third party;

2 You shall not modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Services or the Mobile Web Services Materials or access or use Services or the Mobile Web Services Materials in order to build a similar or competitive product or service; Except as expressly stated herein, no part of the Services or the Mobile Web Services Materials may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; You shall not disclose any review of the Services, including but not limited to the results of any performance tests, to any third party without our prior written approval; You shall not use or access the Services to build or support, and/or assist a third party in building or supporting, products or services competitive to the Services; You agree to make every reasonable effort to prevent unauthorized third parties from accessing the Services; and You acknowledge and agree that the Provider owns all rights, title and interest in and to all Intellectual Property Rights (including all derivatives or improvements thereof) in the Services and the Mobile Web Services Materials and any suggestions, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Services or the Mobile Web Services Materials. We reserve the right to change or modify the Service at any time. 5. Restrictions on User Content. You agree not to use, permit the use of or allow your Subscribers to use the Services to transmit any User Content, for any of the following purposes: Sending or making available to the public any communication which is harassing, defamatory, libelous, abusive, threatening, obscene, coercive or objectionable, including material that is false, misleading or inaccurate; or The persistent sending of messages without a reasonable cause or for the purpose of causing annoyance, inconvenience or distress to any person; or The transmission or dissemination of material that violates the rights of any person or company protected by copyright, trade secret, trademark, patent or other intellectual property or similar laws or regulations; or The distribution of material to prefixes from countries where the material is considered to be prohibited or offensive; or The transmission or dissemination of unsolicited material, including without limitation "junk mail" or "unsolicited bulk ", or other advertising material to persons or entities that have not specifically agreed to receive Content from you or your Subscribers; or Sending messages or making available to the public any content that contravenes relevant privacy and electronic communication regulations; for avoidance of doubt this includes the Best Practices Guidelines of the Mobile Marketing Association ( our Anti- Spam Policy; or

3 Other computer programming routines that are intended to damage, interfere with, intercept or expropriate any system, data or personal information, including executing any form of network monitoring that will intercept data which is not expressly approved for use; or Sending inappropriate content or making inappropriate content available to minors. YOU REPRESENT AND WARRANT THAT ALL USER CONTENT WILL NOT CONTAIN ANY LANGUAGE OR OTHER ELEMENTS WHICH ARE OBSCENE, LIBELOUS, SLANDEROUS OR DEFAMATORY AND WILL NOT, WHEN USED AS PERMITTED HEREUNDER, VIOLATE OR INFRINGE UPON, OR GIVE RISE TO ANY ADVERSE CLAIM WITH RESPECT TO ANY COMMON- LAW OR OTHER RIGHT WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ANY COPYRIGHT, TRADEMARK, SERVICE MARK, TRADE NAME, TRADE DRESS, TRADE SECRET, PATENT, LITERARY, DRAMATIC, MUSIC OR MOTION PICTURE RIGHT, RIGHT OF PRIVACY OR PUBLICITY, CONTRACT RIGHT OR "DROIT MORALE" OR OTHER MORAL RIGHTS OF AUTHORS) OF ANY PERSON, OR VIOLATE ANY APPLICABLE LAW. If we, in our sole discretion, determine that you are using the Services in violation of any prohibited purpose, or that any User Content violates the provisions of this section, we reserve the right to remove or disable access to any material that violates the foregoing restrictions or to terminate the Services or this Agreement and your Services in their entirety for a violation of your obligations under this section. Provider will have no liability to you in the event that we take such action. You agree to defend and indemnify Provider against any and all claims brought against us or our affiliates or agents arising out of a violation of your obligations under this section. 6. Intellectual Property Rights. You acknowledge that the Provider transfers no rights of ownership to you by virtue of your use of the Services or Materials that you access hereunder. Notwithstanding the foregoing, Provider will license to you those Intellectual Property Rights which are directly and unavoidably required in the provision of the Services. You grant to us a non-exclusive license in such Intellectual Property Rights as are directly and unavoidably required by us in our provision of the Services. Any license granted herein shall not be transferred nor sub-licensed, shall be non-exclusive, royalty free, limited to the Term of the Agreement and granted only for the purpose of fulfilling each party s obligations under this Agreement. You acknowledge that you shall not reverse engineer, decompile or disassemble any software comprised in the Services or the Material provided with the Services or to which you have access to as a result of using the Services. 7. Trial Services. You may order trial services for the Services, which you may use for trial, non-production purposes only. The trial period will be specified during the trial registration and start on the effective date of the Service Package. At the conclusion of the trial period, unless you notify us that you desire to terminate your temporary license, such license and trial services shall automatically convert to a standard license to the Services, upon such terms as are set forth in this Agreement. If prior to the conclusion of your temporary license, you inform us that you do not desire to continue use of the Services beyond the expiration of the trial period, then upon our receipt of your notice to terminate your trial period and your usage rights shall terminate. The trial services provided for trial purposes are provided "as is" and Provider does not provide technical support or offer any warranties for these services.

4 8. Hosting Service Level Agreement. Deluxe will provide Hosting Services for your Applications using the Services. We shall provide a reasonable effort to deliver of 99.8% monthly availability of the Services. This will not include planned outages or outages directly attributable to the Service Providers of ours. 9. Billing and Payment. 9.1 Transfer Disputes. You agree to pay in advance for all Services, unless otherwise set forth in an Service Package. All fees due under the Agreement cannot be cancelled and the sums paid non-refundable, except as otherwise specified in this Agreement. Services fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, even if such amounts are not listed on an Service Package. You will reimburse us for reasonable expenses related to providing the Services. You will provide us with a valid and updated credit card or approved purchase order information along with complete and accurate billing and contact information. If you provide credit card information to us, you authorize us to bill such credit card (a) at the time that you order any products or services, for all products and services set forth in the Service Package, and (b) at the time of any renewal, for the amount charged for any renewal Subscription Term(s) as set forth herein. If we, in our sole discretion, permit you to make payment using a method other than a credit card, we will invoice you at the time of the initial Service Package and approximately one month in advance of the start of any renewal or subsequent billing period. All amounts invoiced hereunder are due and payable immediately upon your receipt of any such invoice. You agree to reimburse us for any costs of collection incurred with respect to collecting late payments, including the costs of reasonable attorney fees. Late payments shall accrue interest at the rate of 1% per month commencing with the due date. If you elect to use advertising services within the Services, we will provide a report on a quarterly basis of fees due to you. Such fess due shall only be paid when we are in receipt of such monies due from third parties. 10. Term and Termination. The term of the Services set forth in the Service Package hereunder shall commence upon the effective date set forth in the Service Package and shall continue for the period of time set forth in such Service Package (the "Subscription Term"). Except as otherwise provided in a Service Package issued by us, the Services may be renewed under our then-current applicable policies and terms, subject to our acceptance and your payment of fees for such Services. Termination for Default. In the event of your material breach of this Agreement, we reserve the right to terminate the applicable Service Package. We may immediately suspend your account, and access to or use of the Services during such cure period if (i) you fail to make payment due to us under the Agreement and do not cure such non-payment within ten (10) business days after we have provided you with notice of such failure, or (ii) you violate any provision of this User Agreement. Any suspension by us of the Services under the preceding sentence shall not excuse you from your obligation to make payment under the Agreement. Upon any termination of the Service Package, your right to access and use the Services (including our Mobile Web Services Materials) shall terminate. If we terminate the Services due to your default, you must pay within thirty (30) days all amounts which have

5 accrued prior to such termination, as well as all sums remaining unpaid for services received plus related taxes and expenses. 11. Third Party Transactions. If you or your Subscribers, via your Applications, enter into correspondence with, purchase goods or services from, or participate in promotions of advertisers or sponsors other than Provider through the Services, any such activity, and any terms, conditions, warranties or representations associated with such activity, is governed solely by the terms between you and the applicable third party. We shall have no liability or obligation for, and do not endorse or accept any responsibility for, the contents or use of third party web sites or any transactions completed with third parties. We may provide such links only as a convenience, and the inclusion of any link does not imply endorsement by us of the linked web site, notwithstanding the inclusion on such site of the trademarks of ours or our Third Party Providers. We shall have no liability to you or any of your Subscribers as a consequence of a third party transaction. You agree to defend and indemnify us and our affiliates and agents against any and all claims brought against us from any of your Subscribers or from such third party arising out of any third party transactions that occur as a part of your Applications. 12. Customer Care Services. As part of the Services, we will provide you with Customer Care Services that includes ensuring the availability of online reference materials, a telephone support number and live online assistance. The telephone support and live online assistance availability are subject to local business hours of our place of operation. We shall have the right to modify the Customer Care Services Policies at any time in our sole discretion and your continued use of the Services shall constitute your acceptance of any such modified policies. 13. Representations, Warranties and Exclusive Remedy. In addition to the representations and warranties made elsewhere in this Agreement, each party represents and warrants that it has the power and authority to enter into this Agreement, including the terms and conditions set forth in the Service Package. Deluxe warrants that (a) the Services will perform in accordance with its online documentation under normal use; and, (b) the Services will be provided in a manner consistent with generally accepted industry standards. You must notify us in writing of any warranty deficiencies within thirty (30) days from performance of the relevant Services in order to receive warranty remedies. For any breach of the express warranty as set forth above, your exclusive remedy shall be our correction of the deficient Services, and if we are unable to correct such warranty deficiencies, you shall be entitled to recover the portion of the fees paid to us for such deficient Services, and such refund shall be our entire and exclusive liability to you for such defect. 14. Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES OTHERWISE CONTAINED IN THIS AGREEMENT, PROVIDER HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTEES, AND CONDITIONS WITH REGARD TO THE PROVIDER S MOBILE WEB SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTIES, AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND QUALITY OF SERVICE. PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY, SUITABILITY, ACCURACY OR COMPLETENESS OF THE PROVIDER S MOBILE WEB SERVICES, OR THE RESULTS YOU MAY OBTAIN BY USING THE PROVIDER S MOBILE WEB SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PROVIDER DOES NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE PROVIDER S MOBILE WEB SERVICES WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-

6 FREE; OR (B) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL YOU PURCHASE OR OBTAIN THROUGH THE PROVIDER S MOBILE WEB SERVICES WILL MEET YOUR REQUIREMENTS. YOU ACKNOWLEDGE THAT PROVIDER DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE PROVIDER S MOBILE WEB SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. PROVIDER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY PROVIDER, THE PROVIDER S MOBILE WEB SERVICES ARE PROVIDED TO YOU ON AN "AS IS" BASIS. 15. Limitation of Liability. IN NO EVENT SHALL PROVIDER BE LIABLE TO YOU FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR FOR ANY DAMAGES FOR LOSS OF DATA, REVENUE, PROFITS (EXCLUDING FEES UNDER THE AGREEMENT), USE OR OTHER ECONOMIC ADVANTAGE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE PROVIDER S MOBILE WEB SERVICES, REGARDLESS OF CAUSE, WHETHER IN AN ACTION IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF PROVIDER FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNTS ACTUALLY PAID TO PROVIDER FOR THE PROVIDER S MOBILE WEB SERVICES UNDER THE AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, AND IF SUCH LIABILITY RESULTS FROM YOUR USE OF A PARTICULAR PORTION OF THE PROVIDER S MOBILE WEB SERVICES UNDER THE AGREEMENT, SUCH LIABILITY SHALL BE LIMITED TO THE FEES PAID TO PROVIDER FOR THE DEFICIENT PORTION OF THE PROVIDER S MOBILE WEB SERVICES GIVING RISE TO THE LIABILITY. CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IN SUCH CASES OUR LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW. 16. Indemnification. Each Party (respectively, the "Indemnitor") assumes liability for, and shall indemnify, defend, protect, save and hold harmless the other Party and their respective parents, subsidiaries and affiliated divisions and companies, permitted assigns and, and the respective shareholders, directors, officers, employees and agents of the foregoing (the "Indemnified Parties") from and against any and all claims, actions, suits, costs, liabilities, judgments, obligations, losses, penalties, expenses or damages (including, without limitation, reasonable legal fees and expenses) of whatsoever kind and nature imposed on, incurred by or asserted against any of such Indemnified Parties, arising out of any breach or, solely with respect to third party claims, alleged breach by the Indemnitor of any representation or warranty or covenant made, or obligation assumed, by the Indemnitor pursuant to this Agreement. The provisions of this paragraph shall apply, without limitation, to claims brought by the indemnified Party seeking indemnification against the Indemnitor ("Indemnitee"). In order to seek or receive indemnification hereunder in cases involving third-party claims: (i) the Indemnitee must have promptly notified of any claim or litigation of which it is aware to which the indemnification relates; and (ii) with regard to any claim or litigation to which the Indemnitor itself is not a party, the Indemnitee must have afforded the Indemnitor the opportunity to participate in any compromise, settlement, litigation or other resolution or disposition of such claim or litigation. 17. Confidential Information.

7 You may have access to Provider s information that is confidential to us ("Confidential Information"). Confidential Information of ours shall include, but not be limited to, the software programs provided as part of the Services and any other Mobile Web Services Materials delivered hereunder. Our Confidential Information shall not include information that (i) is or becomes a part of the public domain through no act or omission of the other party; (ii) was in the other party's lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (iii) is lawfully disclosed to the other party by a third party without restriction on disclosure or; (iv) is independently developed by the other party without reference to the other party's Confidential Information. You agree to use reasonable care to prevent disclosure of the other party's Confidential Information to any third party. You agree to hold each our Confidential Information in confidence for a period of five years from the date of disclosure. This Section constitutes the entire understanding of the parties and supersedes all prior or contemporaneous agreements, representations or negotiations, whether oral or written, with respect to Confidential Information. 18. Your Responsibilities. You will ensure that any use of the Services and Materials by you and your Subscribers is in accordance with the terms and conditions of the Agreement, and you shall be responsible for any breach by any Subscriber of such terms and conditions. In addition, you will obtain any Subscriber consents required by us to access the Services under the Agreement. You are responsible for ensuring that your network and systems comply with specifications that we provide. We are not responsible for your network connections or for conditions or problems arising from or related to your network connections (e.g., bandwidth issues, excessive latency, network outages), or caused by the internet. You will be responsible and accountable if any Subscriber posts content in violation of the prohibitions contained in this Agreement. 19. Notices. Provider may give notice applicable to you, as part of its overall subscriber group, by means of a general notice on the Services portal and notices specific to you by electronic mail to your address on record in our account information or by written communication sent by first class mail or pre-paid post to your address on record in our account information. You acknowledge that such means of transmission of any such notice is sufficient for the purpose of satisfying any notice requirements set forth in this Agreement. If you have a dispute with us or you wish to provide a notice under the Agreement, or if you become subject to insolvency or other similar legal proceedings, you will promptly send written notice to our mailing address below. Deluxe Small Business Sales, Inc. Attn: Legal 3680 Victoria Street North Shoreview, MN 55126