Terms Of Service
CLICKVIEW INTERACTIVE, LLC END USER LICENSE AGREEMENT
REDISTRIBUTION NOT PERMITTED
IMPORTANT -- READ CAREFULLY BEFORE USING THIS SOFTWARE:
Clickview Interactive, LLC, a Delaware limited liability company (“Company”), is the owner of LoopSpark™ Software (as defined below). This End User License Agreement (the "License Agreement"), is entered into by You, a physical person or legal entity ("You" or "Your") in consideration of the license granted to You as specified herein with respect to the Software. By clicking the “Accept” button, or installing, copying or otherwise using the Software, You accept, and agree to, the terms and conditions as stated below. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE AGREEMENT, CLICK ON THE "CANCEL" BUTTON AND/OR DO NOT INSTALL THE SOFTWARE. YOU AGREE THAT YOUR USE OF THE SOFTWARE ACKNOWLEDGES THAT YOU HAVE READ THIS LICENSE AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
- GRANT OF LICENSE. You may install only one (1) copy of the Software. Company hereby grants to You a limited, non-exclusive, non-transferrable, non-sublicensable license to use the Software and any related documentation ("Documentation") in the territory of the United States, made available by Company over a network for the purposes of customer relationship management, subject to the terms contained herein including without limitation the following terms: You may: (i) use the Software on any single computer or device; (ii) use the Software on a second computer or device so long as the first and second computers and/or devices are owned by the same purchaser, and (iii) copy the Software for back-up and archival purposes only, provided any copy must contain all of the original Software’s proprietary notices. You agree that You will only use the Software in compliance with Company’s standard published policies in effect from time to time (https://loopspark.com/terms) and in a manner that complies with all applicable laws in the jurisdiction in which You use the Software, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights.
- SOFTWARE. As used in this License Agreement the term "Software" means: (i) LoopSpark’s computer program and all components thereof; (ii) the online software, platform, text message, tasks, scripts and websites which You can access via the LoopSpark™ site and Your account that is hosted and maintained by Company with respect to LoopSpark™; (iii) downloadable software applications offered by LoopSpark™, including any combination of such products (collectively, the "Products"); (iv) any related explanatory written materials and any other possible documentation related to the Software, above all any description of the Software, its specifications, any description of the Software properties or operation, any description of the operating environment in which the Software is used, instructions for use or installation of the Software or any description of how to use the Software or any other Documentation; (v) copies of the Software, patches for possible errors in the Software, additions to the Software, extensions to the Software, modified versions of the Software and updates of Software components, if any, licensed to You by LoopSpark™ pursuant to this License Agreement.
- LICENSE RESTRICTIONS. You may not: (i) permit other individuals or third parties to use the Software except under the terms listed above; (ii) modify, translate, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know how or algorithms relevant to the services, Software or Documentation, or modify, translate, or create derivative works based upon the Software or Documentation; (iii) copy the Software or Documentation; (iv) rent, lease, transfer, or otherwise transfer rights to the Software or Documentation; (v) remove any proprietary notices or labels on the Software or Documentation; or (vi) export or re-export, or allow the export or re-export of the Software or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or any other applicable foreign agency or authority. Any such forbidden use shall immediately terminate Your license to the Software.
- TITLE. Title, ownership, rights, and intellectual property rights in and to the Software and Documentation, all improvements, enhancements or modifications thereto, any software, applications, inventions or other technology developed in connection with services or support, and all intellectual property rights related to any of the foregoing, shall remain in Company including without limitation all patent, copyright, trade secret, trademark and other intellectual property rights therein. You acknowledge and agree that the rights granted herein as a result of or in connection with this Agreement are license rights only, and nothing contained in this Agreement constitutes or shall be construed to be an assignment of any or all of Company’s rights in the Software or Documentation. You shall not, at any time, whether during or after the Term of this Agreement, do or cause to be done, any act or thing challenging, contesting, impairing, invalidating or tending to impair or invalidate any of Company’s rights in and to the Software or Documentation. This license does not grant You any right to any enhancement or update.
- DATA. The LoopSpark™ Software is intended to be used to access the data and information of or provided by , based on or derived from, directly or indirectly, from You (the “Data”) for the purposes specified herein. This Data includes non-public data provided by You to Company to enable use of the Software (“Customer Data”). You represent that You have the legal right to share such Data with Company, directly or indirectly, and to permit Company to house such Data for the purposes herein. You also represent that You have the legal right (i) to use the LoopSpark™ Software with respect to the Data for the purposes specified herein, and (ii) to permit Company to use the Data for the purposes specified herein, including without limitation, sending emails and text messages. Company takes no responsibility for the accuracy of such Data or the use of the LoopSpark™ Software by You in violation of this Agreement, which responsibility rests solely with You. Company also takes no responsibility if You do not have the right to permit Company to use the Data for the purposes specified herein, which responsibility rests solely with You. Although Company has no obligation to monitor Your use of the Software, Company may do so and may prohibit any use Company believes may be in violation of the terms hereof until Company is provided with documentation that such use is permitted. You agree to indemnify, defend and hold harmless Company and its owners, employees, agents, successors and assigns against, and reimburse for, any claim, liability, damage, loss, obligation, demand, judgment, fine, penalty, cost or expense (including reasonable attorneys’ fees) imposed on or reasonably incurred as a result of the inaccuracy of such Data, misuse of such Data, Software or Documentation by You, or Your breach of any representation, warranty or covenant contained herein, failure of You to get permission to use Data (for the purposes specified herein) or use of the Software by You in violation of this Agreement. Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Software and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the Term hereof) to (i) use such information and data to improve and enhance the Software and services it may provide, and for other development, diagnostic and corrective purposes in connection with the Software, services it provides and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
- ACCEPTANCE. By clicking on the "Accept" button, installing, copying or otherwise using the Software, You expressly acknowledge, consent, and agree that Company may remotely gather data on Your usage including Software license keys, serial numbers, server IP addresses, user profile information, usage patterns, Your activity and event data, and other information deemed relevant in Company’s discretion to ensure that the Software is being used in accordance with the terms of this License Agreement, to aid in troubleshooting and product enhancement, or any other lawful purpose. All such data is collected anonymously in a form that does not personally identify You. Any unauthorized use shall be considered by Company to be a violation of this License Agreement. Company reserves the right to remedy such violation immediately upon discovery, by charging the then-current list price of unauthorized keys to You or by any other remedies available to it. You agree not to block, electronically or otherwise, the transmission of data required for compliance with this License Agreement. Any blocking of data required for compliance under this License Agreement shall be a violation of this License Agreement and will result in immediate termination of this License Agreement pursuant to Section 10.
- EQUIPMENT. You are responsible for Your obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Software, including without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (“Equipment”). You are also be responsible for maintaining the security of the Equipment, customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of customer account or the Equipment.
- LIMITED WARRANTY. YOU ACKNOWLEDGE THAT THE SOFTWARE AND DOCUMENTATION ARE “AS IS” AND (i) WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED TO THE MAXIMUM EXTENT PERMITTED BY LAW AND (ii) WITHOUT WARRANTY THAT IT WILL NOT INFRINGE ON THE RIGHTS OF ANY THIRD PARTIES, COPYRIGHTS OR TRADEMARKS, AND (iii) THAT THE COMPANY SPECIFICALLY DISCLAIMS THE WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE EVEN IF THAT PURPOSE IS KNOWN OR SHOULD HAVE BEEN KNOWN TO COMPANY AS TO ANY MATTER WHATSOEVER, INCLUDING BUT NOT LIMITED TO THE SOFTWARE USED BUT NOT PROVIDED BY COMPANY, DATA, SERVICES OR OTHER MATTERS PRODUCED OR PROVIDED HEREUNDER. ANY APPLICATION INFORMATION OR ASSISTANCE THAT COMPANY MAY FURNISH TO YOU IS GRATUITOUS AND SHALL IN NO WAY BE DEEMED A WARRANTY OF THE RESULTS OBTAINED THROUGH USE. THERE IS NO WARRANTY THAT THE FUNCTIONS OF THE SOFTWARE SHALL MEET YOUR REQUIREMENTS AND YOU ASSUME ALL RESPONSIBILITY AND RISK FOR THE SELECTION OF THE SOFTWARE TO ACHIEVE THE INTENDED RESULTS FROM IT. UNDER NO CIRCUMSTANCES WILL COMPANY BE LIABLE TO YOU OR ANY PERSON FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING WITHOUT LIMITATION LOSS OF GOODWILL, LOSS OF DATA OR LOSS OF DAMAGES OR PROFITS EVEN IF COMPANY SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR FOR ANY CLAIM BY ANY OTHER PARTY. Notwithstanding anything to the contrary, Company and its suppliers (including but not limited to all equipment and technology suppliers), owners, officers, affiliates, representatives, contractors, agents, employees and their respective successors and assigns shall not be responsible or liable with respect to any subject matter of this agreement or terms and conditions related thereto under any contract, negligence, strict liability or other theory: (a) for error or interruption of use or for loss or inaccuracy or corruption of data or cost of procurement of substitute goods, services or technology or loss of business; or (b) for any amounts that, together with amounts associated with all other claims, exceed the fees paid by You for the services under this agreement, whether or not Company has been advised of the possibility of such damages.
- CONFIDENTIAL INFORMATION. During the Term of this Agreement, Company may disclose to You certain confidential information which Company desires You to treat as confidential. “Confidential Information” means any proprietary or confidential information disclosed by Company to you, either directly or indirectly, in writing, orally, in computerized form or format or by inspection of tangible objects, including disclosures made by Company prior to the date hereof, including without limitation technical, performance, know-how (whether or not patentable), research, developments, inventions, formulae, schematics, data, concepts, business plans, marketing strategy, techniques, methodology, procedures, computer software (including without limitation object code and source code), reports, patent positioning, prospects, customer information and any other confidential information about or belonging to third parties, together with analyses, compilations, forecasts, proposals, works of authorship, processes, studies or other documents prepared by You that contain or otherwise incorporate such information. You agree not to use any such Company Confidential Information for any purpose except as may be required in connection with the performance of this Agreement. Without the prior written consent of Company, You agree not to disclose, during and after the Term, any Company Confidential Information to third parties. You agree not to not reverse engineer, disassemble or decompile or analyze, restructure and/or copy or in any way recreate in whole or in part any prototypes, software or other tangible objects which embody the Company’s Confidential Information. You acknowledge that the value of Company’s Confidential Information is unique and substantial but may be impractical or difficult to assess in monetary terms.
- TERM AND TERMINATION. This Agreement automatically renews for successive terms; if Your term is monthly, it shall automatically renew for another month, and successive months, at the end of Your billing month and if Your term is annual, it shall automatically renew at the end of Your billing year and for successive years. You or Company may terminate this Agreement by e-mail notice at least thirty (30) days to the other party prior to the beginning of Your next billing cycle; notice to Company shall be by email notice to: [email protected] and notice to You shall be to the email address provided by You to the Company; notice shall be deemed given when received by Company or You, and the effective date of termination shall be at the end of the current billing period if proper notice was given. In such case, You shall be liable for all fees to Company through the effective date of termination. Notwithstanding, Company may terminate this License Agreement automatically if You fail to comply with any term hereof, including payment of fees owed to Company. Upon any termination of this License Agreement, You shall immediately discontinue use of the Software and shall within three (3) days return to Company, or certify destruction of, all full or partial copies of the Software, Documentation and related materials provided by LoopSpark™. Your obligation to pay accrued charges and fees shall survive any termination of this License Agreement. If this license is granted to You as a franchisor or You are a franchisee of a franchisor in contract with the Company, the rights of termination of this license shall be governed by that agreement between franchisor and Company.
- INDEMNITY. You agree to indemnify, hold harmless and defend Company and its officers, owners, members, managers , employees, agents, successors and assigns (the "Indemnitees") against any claims, demands, losses, liabilities, fines, penalties and expenses of any kind or nature whatsoever brought or threatened against any Indemnitee by reason of or resulting from any access, use or misuse of the Software or Documentation by You or on Your behalf except as expressly authorized under this License Agreement.
- NO ASSIGNMENT. This License Agreement is personal to You, and You may not assign, sublicense, transfer or otherwise convey Your rights or obligations under this Agreement. You shall indemnify and hold harmless Company against all liability, costs and expenses, including without limitation attorneys’ fees, arising out of or in connection with claims relating to an unpermitted attempted assignment, sublicense, transfer or other conveyance of Your rights or obligations. This Agreement shall inure to the benefit of, and be binding upon, the permitted successors, assigns and representatives of the Parties. If this license is granted to You as a franchisor or You are a franchisee of a franchisor in contract with the Company, the rights of assignment of this license shall be governed by that agreement between franchisor and Company.
- MISCELLANEOUS. This License Agreement, and the fees payable to Company with respect thereto, shall constitute the complete and exclusive agreement between You and Company and shall supersede and replace all prior discussions, understandings and agreements related thereto, except if this license is granted to You as a franchisor or You are a franchisee of a franchisor in contract with the Company, in which case the terms of such agreement with franchisor is incorporated herein only with respect to franchisor, and such terms shall govern to the extent that they conflict with the terms hereof. The acceptance of any purchase order is expressly made conditional on Your consent to the terms set forth herein. The terms and conditions contained in this License Agreement may not be modified except in a writing duly signed by You and an authorized representative of Company. The following Sections of this Agreement shall survive any termination of this Agreement: Sections: 3-6 and 8-12, as well as any obligations to pay fees to Company. No waiver by Company of Your breach hereunder shall be deemed a waiver of any other or subsequent breach. This agreement and release may not be changed orally. Unpaid Fees are subject to a finance charge of 1.5% per month on the outstanding overdue balance from time to time, or the maximum permitted by law, whichever is lower, plus all expenses of collection including attorneys’ fees. If any provision of this Agreement shall be held by a court of competent jurisdiction to be excessively broad as to duration, activity, geographic scope or subject, it shall be deemed to extend only over the maximum duration, activity, geographic scope and subject as to which such provision shall be valid and enforceable under applicable law. In the event any part of this Agreement shall be determined to be invalid, illegal or unenforceable under any federal or state law or regulation, or declared null and void by any court of competent jurisdiction, then the remainder of this Agreement shall not be impaired or otherwise affected and shall continue to be valid and enforceable to the fullest extent permitted by law, and such part shall be reformed, if possible, to conform with the law and, in any event, the remaining parts of this Agreement shall be fully effective and operative so far as reasonably possible to carry out the contractual purposes and terms set forth herein. This License Agreement shall be governed by the laws of Delaware, without regard to conflicts of law provisions, and You hereby consent to the exclusive jurisdiction of the state and federal courts sitting in the State of New York. In the event any legal action is taken by Company against You to enforce any of the terms and conditions of this Agreement, You agree to pay Company, if Company prevails in whole or in part, all of Company’s court costs, reasonable attorneys’ fees and expenses incurred by Company. Company shall not be responsible for any loss or damage resulting from any delay or failure in performing any provision of this Agreement due to any act of God, fire, explosion, flood, storm, earthquake, war, riot, disease or from any delay or failure in access to the Software if systems are affected or impaired by mechanical breakdown, or by any cause beyond Company’s control or by the order, requisition, request or recommendation of any governmental agency or acting body, or compliance therewith or by governmental proration, regulation or priority or the inability of Company to obtain at reasonable costs any raw material (including energy), or from any other delay or failure due to any cause beyond Company’s control, similar or dissimilar to any such causes. A force majeure shall not affect another party’s obligations hereunder. In the event that You have breached or have indicated Your intention to breach this License Agreement in any manner which includes without limitation, any violation or potential violation of Company’s intellectual property rights, You expressly consent to the enforcement of this agreement by injunctive relief or specific performance without the proof of actual damages, in addition to any and all other remedies available.
Updated December 7th, 2020