MASTER TERMS AND CONDITIONS

 

These Master Terms and Conditions (“MTC”) apply to all business and agreements between Frictionless LLC (“Frictionless”) and any person or entity that acquires Services (each person or entity, a “Client”). For clarity, it is understood that these MTC may be incorporated into and govern more than one Order Form between Frictionless and Client, and that the termination or expiration of one Order Form will not affect any other Order Form or these MTC as applied to such other Order Form(s). For further clarity, whether or not Services are acquired pursuant to an Order Form, a Client’s use of the System and Services will always be subject to, at a minimum, these MTC.

1 Definitions.

1.1 “Consumer” means an individual who “Opts-in” (as defined below).

1.2 “Consumer Data” means a Consumer’s personal information (including but not limited to the Consumer’s e-mail address, mobile phone number, street address, birth date, and wedding anniversary) provided by Consumers (a) to Frictionless and/or (b) to Client and made available to Frictionless by Client. Consumer Data may be collected on servers located in the United States and elsewhere.

1.3 “Client Content” means any data, information or material (other than Consumer Data) that Client delivers to Frictionless.

1.4 “Deliverables” means the materials that are developed specifically for Client pursuant to Client’s specific instructions, that Frictionless delivers to or for Client and which are specifically identified as Deliverables on an Order Form.

1.5 “Effective Date” means, with respect to each Order Form, the date specified therein as the Effective Date.

1.6 “Frictionless Materials” means all software, tools, templates, processes, methodologies, techniques, algorithms, ideas, know-how, documentation, technical information, technology, data (including third party data), material and other intellectual property used by Frictionless in the System and/or to provide the Services.

1.7 “Initial Term” means the first period during which a Subscription is in effect and lasts for one (1) year from the Effective Date.

1.8 “Opt-in” means the act of an individual (a) accessing the System using his or her email address; or (b) otherwise making use of the System in a manner that requires such individual to provide personally identifiable information. Each Consumer is subject to the Frictionless Terms of Use, which may be accessed via https://app.frictionlessguest.com/common/legal/terms.aspx Frictionless may amend its Terms of Use from time-to-time and at its discretion.

1.9 “Order Form” means a document signed by both Client and Frictionless which specifies Services and/or Deliverables to be provided or made available to Client by Frictionless.

1.10 “Professional Services” means Services that Frictionless provides to or on behalf of Client, but which are not part of a Subscription.

1.11 “Renewal Term” means an extension of the Term beyond the Initial Term. Unless otherwise specified in an Order Form, each Renewal Term lasts for one (1) year after the end of the immediately prior Initial Term or Renewal Term.

1.12 “Services” means the products and services that are ordered by Client pursuant to an Order Form.

1.13 “Subscription” means Client receiving access for a defined period to one or more Services as specified on an Order Form. For clarity, it is agreed that Professional Services may be offered (a) as part of a defined package and subject to recurring billing; or (b) on an ad hoc basis and billed per the relevant Order Form on which they are ordered.

1.14 “System” means Frictionless’ web-based application through which Services are provided or made available to Client and to Consumers.

1.15 “Term” means the period during which an Order Form is in effect, including the Initial Term and all Renewal Terms.

2 Compliance & Other Obligations.

2.1 General. Both Client and Frictionless will comply with all applicable federal, state and local laws and regulations including, without limitation, all laws and regulations regarding data privacy and communications. For example, the parties will comply with the CAN-SPAM Act of 2003 (“CAN-SPAM”), the Children’s Online Privacy Protection Act of 1998, (“COPPA”), and applicable state laws and regulations such as the Michigan Children’s Protection Registry Act of 2004 and the Utah Child Protection Registry Act of 2005, each as may be or have been amended and as each are applicable to each party.

2.2 Privacy Policy. Without limitation, each of Client and Frictionless will comply with their respective published privacy policies.

2.3 Consumer Data Processing. In order to enable each party to ensure ongoing compliance with laws and regulations applicable to it, each party agrees that (a) it will not authorize any individual under the age of 18 to create a user account, access the System, or otherwise provide personally-identifiable information, and (b) it will not use the System, the Services or otherwise make use of the Consumer Data to communicate electronically with Consumers (whether directly or through third parties) during the Term without both (x) complying with CAN-SPAM and other applicable regulations and (y) notifying the other party of any opt-outs or other changes in Consumer Data resulting from such communication by updating the Consumer Data in the System.

3 Fees; Payment Terms; Other Charges.

Frictionless’ obligations to Client are conditioned on Client paying Frictionless timely and in full. Recurring fees are charged for the availability of the Services, not actual use thereof.

3.1 Initial Payments. Frictionless will not start its performance under an Order Form until any fees specified as payable in advance on an Order Form have been paid.

3.2 Billing for Recurring Fees; Fee Changes. Frictionless will bill Client for recurring fees either on an annual basis or monthly. All invoices will be sent in advance of the period being invoiced, but will not be due earlier than thirty (30) days after the date of invoice. Frictionless may change recurring fees after the Initial Term with written notice to Client not less than forty five (45) prior to the expiration of the then current Term and any increase in recurring fees will be effective for the next Renewal Term.

3.3 Other Charges. Any other charges will be due as specified in the applicable Order Form.

3.4 Late Charges; Suspension of Services. Frictionless may assess a late payment fee of 1½% (or the maximum amount permitted by law, if less) per month on balances that Client does not pay on time (including as a result of a denied credit card or ACH). Frictionless may immediately suspend its performance hereunder if any payment owed to it by Client remains unpaid more than ten (10) business days after a past due notice. Further, Client will pay the reasonable attorneys’ fees and costs incurred by Frictionless to collect any fees or amounts due to Frictionless hereunder.

3.5 Taxes. Client will pay, or reimburse Frictionless for, any taxes or similar liabilities levied on the Services or payments made to Frictionless by Client, excluding taxes or similar liabilities chargeable against Frictionless’ income or gross receipts.

4 Renewal; Termination; Suspension.

4.1 Renewal. Each Subscription shall auto-renew at the end of the then-current Term unless otherwise specified in the relevant Order Form or either party notifies the other of non-renewal at least thirty (30) days in advance of the expiration of the then-current Term.

4.2 Termination for Breach. Either party may immediately terminate any or all Order Forms and/or Subscriptions by written notice to the other party, if the other party: (i) breaches a material obligation to the terminating party and fails to cure that breach within thirty (30) days of receiving written notice from the terminating party; (ii) terminates or suspends its business; (iii) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute which is not dismissed within sixty (60) days of commencement of such proceedings; (iv) becomes insolvent or subject to direct control by a trustee, receiver or similar authority; or (v) has wound up or liquidated, voluntarily or otherwise.

4.3 Return of Materials. After the expiration of all applicable regulatory requirements (such as the CAN-SPAM opt-out period after each communication to Consumers (currently thirty (30) days)) and Frictionless’ receipt of all amounts owed to it by Client, Frictionless will deliver to Client a copy of the Consumer Data in a commonly accessible data format. If, however, Client fails to pay all undisputed amounts owed to Frictionless within sixty (60) days after termination, and any disputed amounts within fifteen (15) days after the final resolution of such dispute, Client loses all rights to the Consumer Data stored on Frictionless servers and Frictionless may remove from its equipment and archive or destroy any such Consumer Data stored on Frictionless servers. Except as provided above, each party will, on termination, immediately return to the other party all papers, materials and other properties of the other party.

4.4 Survival. Any obligations accrued prior to termination, such as payment obligations as described in Section 3, and the following sections will continue in full force and effect after a Subscription and/or an Order Form has expired or been terminated: 1 (Definitions), 3.4 (Late Charges), 3.5 (Taxes), 4.3 (Return of Materials), 4.4 (Survival), 5.5 (Third Party Services), 5.6 (Disclaimer), 6 (Limitation of Liability), 7 (Indemnification), 8 (Intellectual Property), 9 (Confidential Information), 11 (General).

4.5 Prohibited Conduct/Suspension. Client may not access the System and/or use the Services to (i) act in an unwanted or offensive manner toward another; (ii) harm or exploit minors in any way, including requesting personal or other information; (iii) post, submit or otherwise use the Services in a manner that is unlawful, harmful, defamatory, profane, obscene, libelous, hateful or otherwise offensive; (iv) act in a manner that is racially, ethnically or otherwise objectionable; (v) post or reference obscene, pornographic, indecent or otherwise offensive materials (whether in visual, textual or audio format); (vi) discuss, incite or otherwise solicit illegal activity; (vii) promote physical harm or injury against any group or individual, or promote any act of cruelty to animals; or (viii) violate or infringe on the rights of any individual or other person, including, but not limited to intellectual property, publicity or privacy rights. Frictionless may immediately suspend Client’s access to the System and/or Services if Frictionless determines in good faith that Client has used or is using the System and/or Services to engage in any or all of the conduct described in this Section. Frictionless will promptly notify Client of the basis for any suspension hereunder, and will reinstate Client’s access promptly upon Client rectifying the basis for the suspension. Repeated or egregious use by Client of the System and/or Services as described in this Section may be the basis for termination of the relevant Order Form by Frictionless for Client’s breach.

5 Warranties.

5.1 Frictionless’s Warranties. Frictionless warrants that the System and Services will perform and be available materially in accordance with the online help documentation available through the System.

5.2 Client’s Warranties. Client warrants that it has obtained all necessary rights, licenses, consents, waivers and permissions from advertisers and others to allow Frictionless to process Consumer Data and otherwise provide Services on Client’s behalf and to use any data provided to or collected by the System.

5.3 Internet. The System relies upon communication via the Internet and is therefore subject to outages and communication and data flow failures, interruptions and delays inherent in Internet communications. Client is responsible for acquiring and maintaining access to the Internet in order to access and use the System. Client acknowledges that problems with the Internet, including equipment, software or network failures, impairments or congestion, or the configuration of Frictionless’, Client’s, or a Consumer’s system, may prevent, interrupt or delay the System. Frictionless will not be liable for any delay, interruption, suspension or unavailability of the System that is outside Frictionless’ reasonable control.

5.4 Maintenance. Frictionless will use reasonable efforts to minimize the duration and impact of any unscheduled maintenance on access to or use of the System.

5.5 Third Party Services. CLIENT ACKNOWLEDGES THAT FRICTIONLESS PROVIDES THIRD PARTY SERVICES AND MAKES THIRD PARTY DATA AVAILABLE TO CLIENT “AS IS” AND “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND.

5.6 Disclaimer. THE PARTIES ACKNOWLEDGE THAT THE FOREGOING WARRANTIES ARE MADE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE OF TRADE OR COURSE OF PERFORMANCE. FRICTIONLESS DOES NOT WARRANT THAT THE OPERATION OF, ACCESS TO OR USE OF ALL OR ANY PART OF THE SYSTEM OR SERVICES WILL BE CONTINUOUS, UNINTERRUPTED OR ERROR FREE, OR THAT THE RESULTS ARISING OUT OF THE SERVICES WILL BE ACCURATE, COMPLETE OR ERROR FREE.

5.7 Remedy. THE CLIENT ACKNOWLEDGES THAT IF The results obtained from the SYSTEM OR THE SERVICES are inaccurate, incomplete or erroneous due to the fault of Frictionless, Frictionless’ sole obligation will be to CORRECT THE RELEVANT SERVICES at no additional charge.

6 Limitation of Liability. EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY NOR ITS RESPECTIVE LICENSORS OR SUPPLIERS WILL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE OR DATA; COMPUTER VIRUSES; ERRORS, OMISSIONS OR DEFECTS IN THE SYSTEM OR ANY INFORMATION CONTAINED THEREIN; AND LOSSES FROM INTERRUPTION, TERMINATION OR FAILED OPERATION OF THE SYSTEM) INCURRED BY ANYONE IN ANY MANNER WHATSOEVER IN CONNECTION WITH THE USE OR INABILITY TO USE THE SYSTEM OR THE SERVICES, WHETHER IN AN ACTION IN CONTRACT, TORT OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE FAILURE OF ESSENTIAL PURPOSE OF ANY EXCLUSIVE OR LIMITED REMEDY. EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS HEREIN, IN NO EVENT WILL EITHER PARTY’S TOTAL CUMULATIVE LIABILITY EXCEED THE FEES THAT CLIENT PAID OR OWED TO FRICTIONLESS DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE CIRCUMSTANCES GIVING RISE TO THE CAUSE OF ACTION.

7 Indemnification.

7.1 Each party (“Indemnitor”) will indemnify and defend the other party (“Indemnitee”), its respective officers, directors, employees, agents, heirs, successors in interest, and affiliated entities (each an “Indemnified Party”) from and against any and all liabilities, losses, damages, claims, and expenses, including reasonable legal fees, that may be incurred or suffered by one or more Indemnified Parties arising out of third party claims alleging that materials provided by Indemnitor infringe that third party’s intellectual property rights. Indemnitee will notify Indemnitor promptly about any claim for which any Indemnified Party seeks indemnification under this paragraph and will cooperate with Indemnitor in connection with that claim. Indemnitor may defend or settle any indemnified claim, in its sole discretion, with counsel of its own choosing, provided that any settlement includes a full release of all Indemnified Parties. Client will also indemnify Frictionless from and against any and all liabilities, losses, damages, claims, and expenses, including reasonable legal fees, that may be incurred or suffered by Frictionless as a result of Client’s breach of Section 2.3 (Customer Data Management).

7.2 Indemnitor’s obligation to indemnify will be void to the extent that the indemnification obligation results from an Indemnified Party’s (i) misuse or modification of the materials and/or information that are the subject of the claim (the “Subject Materials”); (ii) failure to use Indemnitor’s corrections or enhancements to the Subject Materials that have been made available to Indemnitee; (iii) use of the Subject Materials in combination with any product or information that Indemnitor does not provide; or (iv) operation or use of the Subject Materials in a manner not intended by the Indemnitor.

8 Intellectual Property.

8.1 Frictionless Materials. Frictionless Materials are and will remain Frictionless’ property. Nothing herein or in any Order Form will be construed to assign or transfer to Client any intellectual property rights in or to the Frictionless Materials.

8.2 Client Content. Client will retain rights to the Client Content.

8.3 Consumer Data. Client and Frictionless shall each have independent rights in Consumer Data. Client and Frictionless may each use the Consumer Data in its own operations and in building and maintaining its relationship with a Consumer, in accordance with its own privacy policy and subject to applicable law.

8.4 Deliverables. Upon payment in full of all fees owed to Frictionless, Frictionless hereby transfers and assigns to Client all rights in the Deliverables, other than the Frictionless Materials that may be incorporated into or otherwise provided with the Deliverables. If Frictionless incorporates the Frictionless Materials into the Deliverables, Frictionless will grant to Client a perpetual, non-exclusive, royalty-free, non-transferable license to use those Frictionless Materials only with such Deliverables as delivered to Client. Client hereby grants to Frictionless a non-exclusive, royalty-free license to use, modify or copy the Deliverables and Client Content to provide the System and Services during the Term.

9 Confidential Information.

9.1 Confidential Information. A party (“Owner”) may give to the other party (“Recipient”) access to its confidential information, directly or indirectly, in writing, by inspection, or orally. All information that the parties exchange will be considered “Confidential Information” unless Owner tells Recipient that the information is not Confidential Information, or the information otherwise fits into one of the following exceptions. By disclosing Confidential Information, Owner does not grant Recipient any express or implied right to the Confidential Information. Confidential Information does not include any information which (i) was publiclyknown and available in the public domain before Owner disclosed it to Recipient; (ii) becomes publicly known and generally available after Owner disclosed it to Recipient by other than Recipient’s action or inaction; (iii) Recipient already possesses when Owner discloses it as shown by Recipient’s records; (iv) Recipient obtains from a third party without restriction and without a breach of that party’s confidentiality obligations; or (v) Recipient can show it independently developed without use of or reference to the Confidential Information.

9.2 Disclosure and Use. For so long as Owner’s Confidential Information remains Confidential Information, the Recipient will (i) not disclose such Confidential Information; (ii) not use any of the Confidential Information other than in connection with its performance hereunder; (iii) protect the secrecy of the Confidential Information, using the same measures that Recipient takes to protect its own Confidential Information; and (iv) notify Owner immediately if Recipient discovers any unauthorized disclosure of such Confidential Information. Recipient may disclose Confidential Information of the Owner to the extent compelled by law to do so, provided the Recipient gives the Owner prior notice of the compelled disclosure (to the extent it is legally permitted to do so) and reasonable assistance, at the Owner’s cost, if the Owner wishes to contest the disclosure. If the Recipient is compelled by law to disclose the Owner’s Confidential Information as part of a civil proceeding to which Owner is a party, Owner will reimburse the Recipient for its reasonable cost of compiling and providing access to that information.

9.3 Obligations on Termination. On termination of the applicable Subscriptions and/or Order Forms, the each party will discontinue its use of the other party’s Confidential Information then in its possession and return or destroy, on the Owner’s request, all originals and copies of the other party’s Confidential Information and certify that destruction.

10 Consumer Data.

10.1 Restrictions. Frictionless will take reasonable steps to protect the Consumer Data from unauthorized disclosure.

10.2 Aggregated Data. Notwithstanding anything else in this Agreement, Frictionless may in perpetuity store, use, exploit and distribute the Consumer Data in an aggregated form.

11 General.

11.1 Governing Law. These MTC and all Order Forms will be governed by the laws of the State of New York without regard to its choice-of-laws provisions or the application of the Uniform Computer Information Transactions Act or the UN Convention on Contracts for the International Sale of Goods. The parties consent to personal jurisdiction in the state of New York and the exclusive jurisdiction and venue of the federal or state courts serving Manhattan, New York.

11.2 Force Majeure. A party will not be liable to the other should its performance be delayed by circumstances beyond its reasonable control, provided that the affected party uses its best efforts to resume performance promptly.

11.3 Frictionless Logo. Frictionless affixes a discreet “Powered by Frictionless” (or similar) link at the bottom of web pages used as part of the System.

11.4 Publicity. Frictionless may accurately use Client’s logo for sales, marketing and public relations purposes.

11.5 Integration and Precedence. These MTC, and each Order Form that incorporates them, constitute the entire agreement between the parties regarding the Order Form’s subject matter and supersede all prior oral and written agreements concerning the Order Form’s subject matter. If there is a conflict between these MTC and an Order Form, the Order Form will supersede these MTC, but only with respect to such Order Form.

11.6 Independent Contractor. Each of the parties to these MTC is an independent contractor and neither is an agent, distributor or representative of the other. Neither party will represent itself as an agent of the other or assume or create any obligation in the name of the other.

11.7 Non-recruitment. During the Term and for a period of one (1) year thereafter neither party may hire any employee of the other or solicit an employee to leave the employ of the other party.

11.8 Assignment. A party may not assign or otherwise transfer its rights or obligations under an Order Form without the prior written consent of the other party, except in connection with a transfer of all or substantially all of such party’s assets.

11.9 Miscellaneous. All notices hereunder must be in writing to the other party at its designated address via hand delivery, courier, express delivery, or facsimile and deemed given the next business day after actual delivery. No waiver of any right or remedy on one occasion will be deemed a waiver of that right or remedy on any other occasion. If a provision of these MTC or any Order Form hereunder is declared or found to be unenforceable or void, that provision will be void but all others will remain in force. Frictionless may update these MTC at any time upon not less than sixty (60) days prior written notice, provided that any such updates are applicable to Frictionless’ clients generally and not specific to Client. All other amendments must be in writing and signed by both parties.

Effective Date: April 2, 2015