“This policy applies to customers prior to May 15th, 2017”
Pursuant to a written offer (“Quote“) by POP, Inc. (“POP“), which references this End User License Agreement (“EULA“) and is accepted by the end user client identified in such Quote (“Client“), POP will provide Client a subscription (the “Subscription“) to access the “POPinNow” website and related “POPin” service, owned and operated by POP, including all related web sites, mobile applications (including phone, tablet and other mobile device applications), and other services provided by POP (collectively, the “Portal“). Client’s access to, and use of, the Portal is subject to Client’s acceptance of, and will solely be governed by, the terms set forth in the Quote and this EULA.
Provision of Portal
POP will (a) make the Portal available to Client pursuant to this EULA, and (b) use commercially reasonable efforts to make the Portal available 24 hours a day, 7 days a week, except for: (i) planned downtime (for which POP will give at least 8 hours electronic notice and schedule to the extent practicable during weekend hours between 6:00 p.m. Friday and 3:00 a.m. Monday (PST)), and (ii) any unavailability caused by circumstances beyond POP’s reasonable control, including, for example, an act of God, act of government, natural disaster, civil unrest, terrorist act, strike or labor problem, Internet service provider failure or delay, or denial of service attack.
Protection of Portal Data
POP will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of data retained in the Portal (the “Portal Data“). Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Portal Data by POP’s personnel except (a) to provide the Portal and prevent or address service or technical problems, (b) as compelled by law, or (c) as Client expressly permits in writing.
Access to the Portal is provided on a subscription basis, with the fees for any purchased Subscription (“Subscription Fees“) based on (x) the number of Client users of the Portal (each, a “User“), and (y) the term of such Subscription (the “Subscription Term“) set forth in the applicable Quote.
Quantities of Subscriptions purchased cannot be decreased during the relevant Subscription Term. Quantities of Subscriptions may be added during a Subscription Term at the same pricing as the underlying subscription pricing, prorated for the portion of that Subscription Term remaining at the time the Subscriptions are added. Added Subscriptions will co-terminate with the originally purchased Subscription.
Client will pay POP the Subscription Fees set forth in the applicable Quote.
Any Subscription will commence (the “Subscription Start Date“) on the date set forth in the applicable Quote. Prior to the Subscription Start Date, Client will provide POP with a Purchase Order reflecting an obligation to pay the Subscription Fees for any Subscription provided under this EULA.
POP will invoice Client for any Subscription Fees in accordance with the applicable Quote and upon POP’s acceptance of Client’s written purchase order (“Purchase Order“). Invoiced Subscription Fees are due in accordance with the payment terms set forth in the applicable Quote. Paid Subscription Fees are non-refundable.
Access to the Portal is subject to usage limits, including, for example, the quantities specified in the Purchase Order. Unless otherwise specified, (a) a quantity in a Purchase Order refers to Users, and the Portal may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) a User’s identification may be reassigned to a new individual replacing one who no longer requires use of the Portal. If Client exceeds such usage limits, POP may work with Client to seek to reduce Client’s usage so that it conforms to such limit. If, notwithstanding POP’s efforts, Client is unable or unwilling to abide by such usage limit, Client will execute a Purchase Order for additional Subscriptions to the Portal promptly upon POP’s request, and/or pay any invoice for excess usage in accordance with “Invoicing and Payment” below.
Client will (a) be responsible for Client’s Users’ compliance with this EULA, (b) be responsible for the accuracy, quality and legality of data entered into the Portal by Client’s Users and the means by which Client and Client’s Users acquired such data, (c) use commercially reasonable efforts to prevent unauthorized access to the Portal, and notify POP promptly of any such unauthorized access or use, and (d) use the Portal in accordance with applicable laws and government regulations.
Subject to the exceptions listed below, “Confidential Information” means data entered into the Portal by Client’s Users and information disclosed by Client that is reasonably understood by POP to be confidential. Confidential Information will not include any information that: (a) is or becomes part of the public domain through no act or omission of POP; (b) was in POP’s lawful possession prior to the disclosure and had not been obtained by POP, directly or indirectly, from Client; (c) is lawfully disclosed to POP by a third party without restriction on disclosure; or (d) is independently developed by POP by employees or agents without access to such Confidential Information. POP agrees, for the term of this EULA and three years after its expiration or termination, to hold Confidential Information in strict confidence, not to disclose such Confidential Information to third parties not authorized by Client to receive such Confidential Information, and not to use such Confidential Information for any purpose except as expressly permitted hereunder. POP agrees to take reasonable steps to protect Confidential Information and to ensure that such Confidential Information is not disclosed, distributed or used in violation of the provisions of this EULA. The foregoing prohibitions on disclosure of Confidential Information will not apply to the extent certain Confidential Information is required to be disclosed by POP as a matter of law or by order of a court; provided, that POP uses reasonable efforts to provide Client with prior notice of such obligation to disclose and reasonably assists in obtaining a protective order.
This EULA will remain in full force and effect for any Subscription purchased by Client, and the applicable Subscription Term related thereto. A party may terminate any individual Subscription for cause (a) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
Refund or Payment upon Termination
If any Subscription is terminated by Client in accordance with the “Termination” provision above, POP will refund Client any prepaid fees covering the remainder of the applicable Subscription Term after the effective date of termination. If any Subscription is terminated by POP in accordance with the “Termination” provision above, Client will pay any unpaid fees covering the remainder of the Subscription Term. In no event will termination relieve Client of its obligation to pay any Fees payable to POP for the period prior to the effective date of termination.
Suspension of Service
If any amount owing by Client under this EULA for the Subscription is 30 or more days overdue, POP may, without limiting POP’s other rights and remedies, suspend POP’s services to Client until such amounts are paid in full. POP will give Client at least 10 days’ prior notice that Client’s account is overdue, before suspending services to Client.
The Subscription Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes (collectively, “Taxes“). Client is responsible for paying all Taxes associated with its purchases of Subscriptions. If POP has the legal obligation to pay or collect Taxes for which Client is responsible, POP will invoice Client and Client will pay such amount unless Client provides POP with a valid tax exemption certificate. POP is solely responsible for taxes assessable against POP based on POP’s income, property and employees.
Each party represents that it has validly entered into this EULA and has the legal power to do so. POP warrants that the Portal will perform materially in accordance with this EULA.
EXCEPT AS EXPRESSLY PROVIDED IN THIS EULA, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE PORTAL AND ANY PORTAL DATA ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ALL DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
Limitation of Liability
Notwithstanding any other provision of this EULA, FOR ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS EULA AND THE PROVISION OF THE PORTAL HEREUNDER, IN NO EVENT, WHETHER BASED IN CONTRACT OR TORT (including, without limitation, for breach of warranty, negligence and strict liability in tort), WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR (A) INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, OR FOR LOSS OF REVENUE, LOSS OF BUSINESS OR OTHER FINANCIAL LOSS, OR (B) ACTUAL DAMAGES IN EXCESS OF THE aggregate SUBSCRIPTION FEES paid by Client to POP under this EULA.
To the extent allowed by law, each party (the “Indemnifying Party“) will defend the other party (the “Indemnified Party“) against any claim, demand, suit or proceeding made or brought against the Indemnified Party by a third party alleging that (i) with respect to Client, that data entered into the Portal by Client or its Users, or (ii) with respect to POP, any POP generated content on the Portal, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim“), and will indemnify the Indemnified Party from any damages, attorney fees and costs finally awarded against such party as a result of, or for any amounts paid by such party under a court-approved settlement of, a Claim against such Indemnified Party; provided, that such Indemnified Party give the Indemnifying Party (a) prompt written notice of the Claim, (b) sole control of the defense and settlement of the Claim (except that the Indemnifying Party may not settle any Claim unless it unconditionally releases the Indemnified Party of all liability), and (c) all reasonable assistance, at the Indemnifying Party’s expense.
Product Improvement Program
Users will be presented with the opportunity to participate in the POP Product Improvement Program. Users may, in their sole discretion, choose whether to opt into such program. Information collected in the program will be used to improve the Portal, and enhance, support and develop new features.
Client grants POP the right to use Client’s logo and corporate name as a reference for the services provided under this Agreement. Use of Client’s logo and corporate name (a) will be consistent with Client’s provided standards for logo use and design, and (b) may be extended to presentations, website publication, press releases and promotional materials.
Relationship of the Parties
POP is an independent contractor and not an agent, servant, employee, legal representative, partner or joint venturer of Client. Nothing in this EULA will be deemed to create a joint venture or partnership between the parties.
Assignment of this EULA is prohibited without the express written consent of both parties, except (a) each party reserves the right to assign this EULA to the successor in a merger or acquisition of such party, and (b) POP reserves the right to subcontract any obligations hereunder.
Governing Law; Venue
This EULA, and all disputes hereunder, will be governed by the laws of the State of California. Any action, suit or proceeding arising out of this EULA will be initiated and prosecuted in a state or federal court located in Orange County, California.
This EULA represents the entire agreement between the parties regarding the subject matter contained herein, and supersedes any and all other agreements between the parties regarding the subject matter hereof. Any changes to the terms and conditions in this EULA must be in set forth in a written agreement signed by each party.