TERMS AND CONDITIONS OF PARKA SOLUTIONS INC.
Last Updated: January 23, 2024
These Terms and Conditions (“T&C”) are entered by and between Parka Solutions Inc. (dba Lucky), a Delaware Corporation with its principal offices located at 501 E Las Olas Blvd, Suite 200/300, PMB #459577, Fort Lauderdale, FL, 33301 (“Company”, “we,” or “our”), and the customer set forth on the applicable document or other agreement bound by these T&C (“Customer”, “you,” or “your”). Company and Customer are referred to each as a “party” and collectively as the “parties”. The parties agree as follows:
These T&C together with any Order Form, SOW, or other document or agreement by and between Company and Customer, as applicable, shall constitute the “Agreement”. BY ACCEPTING THESE TERMS, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, EXECUTING AN ORDER FORM, SOW, OR OTHER DOCUMENT THAT REFERENCES THESE TERMS, BY USING (OR MAKING ANY PAYMENT FOR) THE LUCKY PLATFORM AND/OR ANOTHER LUCKY OFFERED SERVICE(S), OR BY OTHERWISE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THESE TERMS, YOU: (i) AGREE TO THESE TERMS ON BEHALF OF YOUR ORGANIZATION, COMPANY, OR OTHER LEGAL ENTITY FOR WHICH YOU ACT and (ii) YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCEPT THESE TERMS AND MAY NOT USE THE LUCKY PLATFORM AND/OR ANOTHER LUCKY OFFERED SERVICE(S), OR RECEIVE PROFESSIONAL SERVICES FROM LUCKY.
“APIs” means any (i) application programming interface information or instructions, (ii) software development kits, or (iii) other software code snippets; in each case, made available by Company to Customer from time to time.
“Authorized Users” means employees of Customer for whom Customer has paid all applicable fees to permit them to access and/or use Company’s Platform.
“Company Platform” means Company’s web-based software platform(s) which enables software as a service (“SaaS”) businesses to easily power Customer’s integration practices, including any updates or enhancements thereto that Company may provide to Customer from time to time and any associated products or services offered by Company in any form.
“Documentation” means user manuals, technical manuals, and any other materials provided by or on behalf of Company with the Company Platform, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the Company Platform.
“Effective Date” means the effective date set forth on any Order Form, SOW, or other binding agreement to use the Company Platform.
“Order Form” means an ordering document or online order executed by both parties (including signing up to use the Company Platform and agreeing to these terms) specifying the details of access to the Company Platform to be provided, including any addenda and supplements thereto.
“Project Ready” means the date Company completes any SOW and notifies Customer of said completion.
“Professional Services” means any consulting services provided to Customer pursuant to a SOW which may include things like configuration services, providing onsite support, or any other services outside the scope of Support Services.
“Scope Limitations” means any limitations on Customer’s use of the Company Platform as specified in the applicable Order Form.
“SOW” means a statement of work executed by both parties specifying the details of Professional Services to be provided.
“Support Services” means basic customer support relating to implementation of the Company Platform for Customer (this does not include any custom work or software engineering services).
Company is engaged in the business of designing and developing an omnichannel data platform and “Find Product Near Me” solution and related products and has created and developed a cloud based software platform. Further details on the Company Platform can be found on Company’s website at https://luckylabs.io/. Customer intends to use the Company Platform in its business operations pursuant to this Agreement. Subject to the terms and conditions of this Agreement and Customer’s payment of all fees, Company grants to Customer a limited right during the applicable term to access the Company Platform by and through its Authorized Users solely in connection with Customer’s internal business operations, any Scope Limitations, and in the manner described by any accompanying Documentation.
1.1 License Overview. Company hereby grants to Customer and its Authorized Users, for the term of this Agreement, a non-assignable, non-sublicensable, non-transferable right and license to use and access the Company Platform, solely for use by Authorized Users in accordance with the terms and conditions herein, to be delivered as a SaaS online platform in connection with its business. Customer is prohibited from making any copies, archival or otherwise, of the Company Platform. The Company Platform is subject to modification from time to time at Company’s sole discretion, provided the modifications do not materially diminish the functionality of the Company Platform provided by Company.
1.2 Order Forms and SOWs. Each Order Form and SOW is subject to and governed by this Agreement. If there is a conflict between this Agreement and an Order Form or SOW, this Agreement will control unless the Order Form or SOW states that a specific provision of this Agreement will be superseded by a specific provision of the Order Form or SOW. Company will perform any Professional Services in accordance with this Agreement and the applicable Order Form or SOW.
1.3 Ownership. Company retains all right, title and interest in and to any software programs, tools, specifications, ideas, concepts, inventions, know-how, processes, and techniques that Company uses or develops in connection with performing Professional Services, as well as all intellectual property rights therein. Unless otherwise provided in an Order Form or SOW, and subject to Customer’s payment of all applicable fees, Company grants Customer a limited, nonexclusive, worldwide, royalty-free, nontransferable license during the applicable term to use such materials, solely in connection with Customer’s permitted use of the Company Platform and APIs.
1.4 License to Marks. Customer trademarks or logos shall be known as Marks (collectively, the “Marks”). By agreeing to these T&C, Customer hereby grants to Company a non-exclusive, royalty-free, worldwide right and license, to copy, reproduce, use, display, publicly perform, modify (at Customer’s direction), and resize the Marks and use any testimonials/quote(s) on its website(s), marketing materials, etc. As between the parties, Customer owns all right, title, and interest in and to the Marks and any and all goodwill that is created by or that results from Company’s use of the Marks under this Agreement will inure solely to Customer.
1.5 Warranties Regarding Marks. Customer represents and warrants that Customer is the sole and exclusive owner of the Marks and testimonials/quote(s), and that Customer has the right to grant the licenses agreed to in this section. Customer agrees to indemnify, defend, and hold Company harmless from and against any first and third-party claim(s) arising out of or related to Company’s use of the Marks as permitted by this Agreement. Customer may not use the name, trade name, trademark, logo, acronym or other designation of Company externally in connection with any press release, advertising, publicity materials or otherwise without the prior written consent of Company.
2.1 Overview. This Agreement shall begin on the Effective Date and continue for twelve months, or the length of the initial term as set forth in the Order Form or SOW (in each case, the “Initial Subscription Term”). This Agreement shall be automatically renewed for successive renewal terms equal to the length of the Initial Subscription Term (each, an “Extended Term”) unless Customer provides Company notice in writing of its intention not to renew the Agreement, said notice to be provided at least sixty (60) days prior to the expiration of the then in-effect term.
2.2 Termination upon Insolvency. Company may terminate the Agreement, effective immediately upon written notice, if Customer files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.
2.3 Breach of Agreement. Company may terminate this Agreement and any Order Forms or SOWs, effective immediately upon notice thereof; provided other termination terms may be stipulated in an Order Form or SOW. Any failure by Customer to timely pay to Company any amounts owed under an Order Form or SOW will constitute a material breach of the Agreement and the applicable Order Form or SOW. If Customer fails to timely pay any fees, Company may, without limitation to any of its other rights or remedies, suspend access to the Company Platform until it receives all amounts due or terminate the Agreement entirely at its sole discretion.
2.4 Survival of Terms. Upon termination of this Agreement all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such termination will survive, including any license restrictions and terms and conditions relating to intellectual/proprietary rights, sales tax/compensation which Customer may owe, license to marks, ownership, confidentiality, warranties, notices, disputes, disclaimers, indemnification, limitations of liability and termination and the general provisions below.
3. Compensation, Payment for Usage of the Company Platform.
3.1 Cost of the Company Platform. In consideration for the licenses granted hereunder and during the Initial Subscription Term and for each Extended Term, Customer agrees to pay fee(s) to Company in accordance with the fee and schedule(s) outlined in the Order Form or SOW (the “Usage Fee”). Customer shall pay a late fee of the lesser of one and one-half percent (1.5%) per month or the highest rate allowed under applicable law on all overdue amounts until the amounts are paid. Any and all fees or payments of any kind made by Customer to Company are non-refundable. If Company, in its sole discretion, refers Customer’s delinquent account to a legal or debt collection firm after a minimum of forty-five (45) days of non-payment, then Company may charge an additional twenty (20%) debt recovery fee to the total debt owed. Anything above and beyond the scope of any Order Form or SOW entered into between the parties shall be charged at a fixed rate of $250.00/hour (or at a rate as mutually defined in a SOW by the parties).
3.2 Sales Tax. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”). Customer will be solely responsible for payment of all Taxes, except for those Taxes based on the income of Company. Customer will not withhold any Taxes from any amounts due to Company.
4. Intellectual Property, Confidentiality, Privacy & Data Compliance
4.1 Company Ownership to Intellectual Property. Company will retain exclusive interest in and ownership of its intellectual property rights in and to the Company Platform and expressly reserves all rights not expressly granted under this Agreement. Customer recognizes that the Company Platform is the proprietary and confidential property of Company. Accordingly, Customer shall not, without the prior express written consent of Company, during the term of this Agreement and in perpetuity thereafter, disclose or reveal to any third party or utilize for its own benefit other than pursuant to this Agreement, any software provided by Company, provided that such information was not previously known to Customer or to the general public. Customer further agrees to take all reasonable precautions to preserve the confidentiality of the Company Platform and shall assume responsibility that its employees, contractors, affiliates, directors, associates, officers, or sub-customers will similarly preserve this information against third parties. The provisions of this clause shall survive termination of this Agreement. Customer shall take no steps in attempting to reverse engineer the Company Platform. All Company property and intellectual property including but not limited to the usage of the Company Platform, software code, designs, documents, proposals, or accounts shall remain at all times the sole and exclusive property of Company, and all accounts, logins, on premise software, documents, records, proposals, software development kits, API implementations, plans, writings and other tangible items that Company supplies to Customer containing or relating to the Company Platform, its implementation, and/or any confidential information disclosed by Company to Customer under this Agreement shall together with all copies thereof, be promptly and without delay returned to Company and destroyed upon termination.
4.3 Personal & Sensitive Data. Customer will not use the Company Platform to transmit or provide to Company any financial or medical information of any nature, or any sensitive personal data (e.g., social security numbers, driver’s license numbers, birth dates, personal bank account numbers, passport or visa numbers and credit card numbers).
4.4. Third-Party Apps & Integrations. Customer’s use of third-party products or services that are not licensed to Customer directly by Company (“Third-Party Apps”) shall be governed solely by the terms and conditions applicable to such Third-Party Apps, as agreed to between Customer and the third party. Company does not endorse or support, is not responsible for, and disclaims all liability with respect to Third-Party Apps, including without limitation, the privacy practices, data security processes or other policies related to Third-Party Apps. Customer agrees to waive any claim against Company with respect to any services by Third-Party Apps. Customer may enable integrations between the Company Platform and Third-Party Apps (each, an “Integration”). By enabling an Integration between the Company Platform and its Third-Party Apps, Customer is instructing Company to share Customer data necessary to facilitate the Integration. Third-party access keys or tokens(including access tokens generated via OAuth flows, API keys supplied to Company, or secret keys are the sole property of Company, and Customer hereby and unequivocally transfers ownership to Company). Customer is responsible for providing all instructions to the Third-Party App provider about the use and protection of Customer data. Company and Third-Party App providers are not sub-processors of each other. Customer shall indemnify and hold harmless Company from any and all claims arising from violation(s) of Customer or its user(s) improper usage of the Integrations.
5. Warranties & Disclaimers.
5.1 Company Warranty. THE WARRANTY PROVIDED FOR HEREIN IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, THAT MAY ARISE EITHER BY THIS AGREEMENT BETWEEN THE PARTIES OR BY OPERATION OF LAW, INCLUDING THE WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
5.2 Liability. LIMITATION OF LIABILITY: IN NO EVENT WILL COMPANY BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY TRANSACTIONS IT CONTEMPLATES OR RELATES TO (WHETHER FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, OR OTHER FORM OF ACTION) AND IRRESPECTIVE OF WHETHER COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGE. THE COMPANY PLATFORM SHALL BE DELIVERED TO CUSTOMER “AS IS” AND NO WARRANTY OF ANY KIND IS MADE BY COMPANY. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, COMPANY MAKES NO REPRESENTATIONS OR WARRANTY, AND CUSTOMER HEREBY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO ANY OF THE MATERIALS, INFORMATION, SERVICES OR LICENSES PROVIDED PURSUANT TO THIS AGREEMENT. IN NO EVENT WILL COMPANY’S (OR ANY OF ITS AFFILIATE(S), CONSULTANTS, ASSOCIATES, OR CONTRACTORS) LIABILITY FOR ALL CLAIMS, LIABILITIES, AND DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR OTHERWISE WITH CUSTOMER, WHETHER IN CONTRACT OR TORT OR BY WAY OF INDEMNITY OR OTHERWISE, EVER EXCEED THE GREATER OF TEN DOLLARS OR THE AMOUNT CUSTOMER PAID TO COMPANY HEREUNDER FOR THE MOST RECENT TWO (2) MONTH PERIOD.
5.3 Reliability Warranty CUSTOMER EXPRESSLY AGREES THAT USE OF THE SITE IS AT ITS SOLE RISK. NEITHER COMPANY, NOR ITS PRESENT OR FUTURE PARENT(S), SUBSIDIARIES, OR RELATED ENTITIES, NOR ANY OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, THIRD-PARTY CONTENT PROVIDERS OR LICENSORS WARRANT THAT THE COMPANY PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE COMPANY PLATFORM, OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICE, OR MERCHANDISE PROVIDED THROUGH THE COMPANY PLATFORM.
5.4 Other Warranties. Customer represents and warrants to the Company that: (a) the Agreement constitutes a valid and binding agreement enforceable against Customer in accordance with its terms; (b) no authorization or approval from any third party is required in connection with the execution, delivery, or performance of the Agreement by Customer; and (c) the execution, delivery, and performance of the Agreement by Customer does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
5.5 Claims. In the event of a claim by Customer under this warranty, Company shall have the option to repair the Company Platform. In the event that Company fails to repair the Company Platform within a reasonable period, Customer’s sole recourse shall be to cease using the Company Platform and terminate the Agreement.
6. Proof of Concept, Setup & Go-Live.
6.1 Proof of Concept. The proof of concept (“POC”) is an understanding between Company and Customer, limited exclusively to Company’s Platform, wherein Company shall provide Customer access to its the Company Platform for a period of time as defined in the Order Form (“POC Term”)(by default the POC Term shall be set at 14 days, unless otherwise defined, but shall not exceed a maximum of 30 days) during which Customer shall, in good faith, work towards implementing the Company Platform app and/or API(s) in Customer’s system(s). The POC shall be limited to one (1) integration (unless otherwise set forth on an Order Form or SOW) and Company shall commit to provide up to two (2) support meetings with Customer. The POC Term shall start after Company notifies Customer of its readiness via email. Customer may, at any point during the POC Term (but not sooner), notify Company in writing of its intent to terminate the POC at which point Customer shall not owe any further amounts to Company (aside from fees already paid and/or other fees as specified on an Order Form or SOW). If such notice is not provided within the POC Term, then the Order Form or SOW shall be automatically accepted and Customer shall be bound by the full terms of the Order Form or SOW. Customer agrees it shall pay for a 3% surcharge on any fees owed if Customer wishes to pay any invoice(s) via credit card. All invoices to Customer shall be due upon receipt.
6.2 Setup and Training. Company shall set up the Company Platform in accordance with any timelines provided on the Order Form. If no such timeline is provided, Company will determine a time at its discretion. At the time of setup and “go live” of the Company Platform and for no additional consideration, Company may train a Customer employee or representative in the use of the Company Platform. In the event that Customer fails to notify Company of any difficulties or problems with the Company Platform within seven (7) days after installation or within seven (7) days of Project Ready thereof, Customer shall be deemed to have accepted the Company Platform. Prior to acceptance of such the Company Platform, Company shall have the right to repair the Company Platform at its sole discretion. Upon acceptance of such the Company Platform changes, Company shall be under no obligation to repair such the Company Platform except as provided for in Section 5 of this Agreement.
6.3 Prompt Response. To preserve project and implementation timelines, Customer shall promptly respond to all Company inquiries within three (3) business days via email. If such response is not received, then Company request shall automatically be deemed accepted. Notwithstanding the foregoing, if Customer is disengaged or unresponsive for fourteen business days, Company considers the project complete and will collect any remaining balances.
7.1 Basic Indemnification. Customer (as an indemnifying party) shall indemnify, defend, and hold harmless Company (as an indemnified party) against any and all losses, claims, allegations, demands, suits, proceedings, investigations, prosecutions, actions, threats, causes of action, liabilities, obligations, costs, expenses, assessments, settlements, judgments, interest, penalties (including legal expenses and reasonable attorneys’ fees), damages or injuries of any kind or nature whatsoever (whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals) in connection with any proceeding arising out of or in any way connected with this agreement.
In addition to the foregoing, Customer hereby and irrevocably forever explicitly waives any claim(s) against Company and agrees to also indemnify, defend, and hold harmless Company for claims arising from, in connection with, or related to (i) Customer’s unauthorized customization, modification, or other alterations to Company software, (ii) violations of this Agreement and/or any other agreement(s) between Company and Customer, (iii) Company’s performance or nonperformance of the duties outlined in this Agreement, (iv) any third-party APIs/services and their associated terms and conditions, privacy policies(including any possible violation(s) by Customer of said terms and conditions or privacy policies), (v) privacy requirements, (vi) infringement of any patent, copyright, trademark, or trade secret, (vii) intellectual property, including the handling of any intellectual property or confidential information by Company or its affiliate(s), and/or (viii) misuse or noncompliance of third-party APIs/services, including claims that its customization, modification, or other alterations infringe a third-party’s intellectual property rights.
The foregoing indemnity shall include, without limitation, reasonable fees of attorneys, consultants and experts and related costs and Company’s costs of investigating any claims. In addition to Customer’s obligation to indemnify Company, Customer specifically acknowledges and agrees that it has an immediate and independent obligation to defend Company from any claim which actually or potentially falls within this indemnification provision, even if the allegations are or may be groundless, false or fraudulent, which obligation arises at the time such claim is raised to Company and continues at all times thereafter. Customer shall indemnify and hold Company harmless from all loss and liability, including attorneys’ fees, court costs and all other litigation expenses for any infringement of the patent rights, copyright, trade secret or any other proprietary right or trademark, and all other intellectual property claims of any person, entity, or persons in consequence, or any of Customer’s officers or agents, of articles or services to be supplied in the performance of this Agreement.
7.2 Customer’s Compliance. Customer will be fully responsible for Authorized Users’ compliance with this Agreement and any breach of this Agreement by an Authorized User shall be deemed to be a breach by Customer. Company’s relationship is with Customer and not individual Authorized Users or third parties using the Company Platform through Customer, and Customer will address all claims raised by its Authorized Users directly and shall not hold liable Company.
8.1 Procedure for Notices. Any notice made to Company required to be given pursuant to this Agreement shall be in writing and delivered to its address listed at the top of these T&C. Either party may change the address to which notice or payment is to be sent by written notice to the other party pursuant to the provisions of this paragraph.
8.2. Disputes. Any and all disputes, controversies, or claims arising under or in connection with this Agreement shall be settled exclusively by confidential arbitration, conducted before a single arbitrator selected at the sole discretion of Company in Las Vegas, Nevada or in another county as determined by Company at its sole discretion, in accordance with the rules of the American Arbitration Association then in effect. The arbitration shall be final and binding on the parties.
8.3 Dispute Procedures. The parties hereto will use their reasonable best efforts to resolve any dispute hereunder through good faith negotiations. A party hereto must submit a written notice to the other party =of a dispute, and any such dispute that cannot be resolved within sixty (60) calendar days of receipt of such notice (or such other period to which the parties may agree) will be submitted to an arbitrator selected by Company. Customer agrees that, to the fullest extent permitted by law, Customer may only bring a claim against Company in an individual capacity, and not participate as a plaintiff, claimant, or class member in any class, collective, consolidated, private attorney general, or representative proceeding relating to, arising out of, or in any way whatsoever connected with this Agreement. Customer agrees that, by entering into this Agreement, Customer is waiving the right to participate in a class action and to a trial by jury to the fullest extent permitted by applicable law. There shall be a three (3) month statute of limitations for which Customer may file any requests for arbitration or any lawsuit of any kind relating to this Agreement or any agreements it contemplates or relates to. If such a claim is filed more than three months subsequent to the date Customer last logged into the platform or the termination of this Agreement (as determined by Company), it shall be precluded by this provision, regardless of whether or not the claim has accrued at that time. In the event that any possible dispute(s) or possible claim(s) are not filed prior to the passing of the statute of limitations (as described above), then immediately after the statute of limitations has passed, Customer, on behalf of itself and its successors, assigns, and other legal representatives, agrees that after such passing, it shall hereby absolutely, unconditionally and irrevocably release, remise and forever discharge Company, and its successors and assigns, and its present and former shareholders, affiliates, subsidiaries, divisions, predecessors, directors, officers, attorneys, employees, consultants, agents and other representatives (being hereinafter referred to collectively as the “Releasees” and individually as a “Releasee”), of and from all demands, actions, causes of action, suits, covenants, contracts, controversies, agreements, promises, sums of money, accounts, bills, reckonings, damages and any and all other claims, counterclaims, defenses, rights of set-off, demands and liabilities whatsoever (individually, a “Claim” and collectively, “Claims”) of every name and nature, known or unknown, suspected or unsuspected, both at law and in equity, which Customer or any of its successors, assigns, or other legal representatives may now or hereafter own, hold, have or claim to have against the Releasees or any of them for, upon, or by reason of any circumstance, action, cause or thing whatsoever which arises at any time on or prior to the day and date of this Agreement, including, without limitation, for or on account of, arising out of, or in relation to, or in any way in connection with any of the Agreement, or any of the other transactions or agreements that may relate in any way.
8.4 Governing Law. This Agreement shall be governed by the laws of Delaware without regard to conflicts of laws principles.
9. Relationship of the Parties
9.1 Classification. The parties are independent contractors, and nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
10. Agreement Binding on Successors
10.1 Overview. This Agreement shall be binding on and shall inure to the benefit of the parties hereto, and their heirs, administrators, successors, and assigns.
11. General Provisions
11.1 Waiver. No waiver by either party of any default shall be deemed as a waiver of any prior or subsequent default of the same or other provisions of this Agreement.
11.2 Severability. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable for this Agreement and shall not affect the validity and enforceability of any remaining provisions. The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.
11.3 Assignability. The license granted hereunder is personal to Customer and may not be assigned by any act of Customer without the consent of Company. Customer may not assign or otherwise transfer this Agreement, in whole or in part, without Company’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets related to this Agreement. Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.
11.4 Remedies. In the event of a breach or threatened breach by Customer of any of the provisions of this Agreement, Customer agrees that Company is entitled to a permanent injunction, in addition to and not in limitation of any other rights and remedies available to Company at law or in equity, in order to prevent or restrain any such breach by Customer or by Customer’s partners, agents, representatives, servants, employees, and/or any and all persons directly or indirectly acting for or with Customer.
11.5 Export Compliance. Customer will comply with the export laws and regulations of the United States, European Union and other applicable jurisdictions in providing and using the Company Platform. Customer may not export, re-export or otherwise access the Company Platform in violation of applicable law, including access or use in any embargoed country or other jurisdiction where such access or use is prohibited. Each party represents that it is not named on any U.S. government denied-party list.
11.6 Amendment to Terms. Company may amend the T&C at any time by posting the amended terms on this site. It is Customer’s responsibility to review these T&C periodically. Customer’s continued use of the Company Platform following the posting of revised T&C means that Customer accepts and agrees to the changes. Customer is expected to check this page frequently so it is aware of any changes, as they are binding on Customer. By continuing to access or use the Company Platform after any revisions become effective, Customer agrees to be bound by the revised terms. If Customer does not agree to the new terms, Customer is no longer authorized to use the Company Platform. Customer and Company must agree to amend any Order Form or SOW that has been executed by the parties.
11.7 Restrictions. Company reserves the right to withdraw or amend the Company Platform, and any service or material it provides via the Company Platform, in its sole discretion without notice. Company will not be liable if for any reason all or any part of the Company Platform is unavailable at any time or for any period. From time to time, Company may restrict access to some parts of the Company Platform, or the entire the Company Platform, to users, including Authorized Users.
11.8 Links to External Sites. The Company Platform may contain links to third-party web sites or services that are not owned or controlled by Company and/or its affiliates.
Company has no control over, and assumes no responsibility for the content, privacy policies, or practices of any third-party web sites or services. Company does not warrant the offerings of any of these entities/individuals or their websites.
CUSTOMER ACKNOWLEDGES AND AGREES THAT COMPANY SHALL NOT BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH USE OF OR RELIANCE ON ANY SUCH CONTENT, GOODS OR SERVICES AVAILABLE ON OR THROUGH ANY SUCH THIRD-PARTY WEB SITES OR SERVICES.
COMPANY STRONGLY ADVISES CUSTOMER TO READ THE TERMS OF SERVICE AND PRIVACY POLICIES OF ANY THIRD-PARTY WEB SITES OR SERVICES THAT IT VISITS.
11.9 Error Reporting. Customer may provide Company either directly at firstname.lastname@example.org or via third-party sites and tools with information and feedback concerning errors, suggestions for improvements, ideas, problems, complaints, and other matters related to our Service (“Feedback”). Customer acknowledges and agrees that: (i) Customer shall not retain, acquire or assert any intellectual property right or other right, title or interest in or to the Feedback; (ii) Company may have development ideas similar to the Feedback; (iii) Feedback does not contain confidential information or proprietary information from Customer or any third party; and (iv) Company is not under any obligation of confidentiality with respect to the Feedback. In the event the transfer of the ownership to the Feedback is not possible due to applicable mandatory laws, Customer grants Company and its affiliates an exclusive, transferable, irrevocable, free-of-charge, sub-licensable, unlimited and perpetual right to use (including copy, modify, create derivative works, publish, distribute and commercialize) Feedback in any manner and for any purpose.
11.10 Third-Party Tools Used. Company may use, from time to time, third-party sites and tools. A non-exhaustive list may include:
11.10.2 Sentry. Sentry is an open-source error tracking solution provided by Functional Software Inc. More information is available here: https://sentry.io/privacy/.
11.10.3 Google Analytics. Google Analytics is a web analytics service offered by Google that tracks and reports website traffic. Google uses the data collected to track and monitor the use of our Service. This data is shared with other Google services. Google may use the collected data to contextualize and personalize the ads of its own advertising network. For more information on the privacy practices of Google, please visit the Google Privacy Terms web page: https://policies.google.com/privacy?hl=en.
Company also encourages Customer to review Google’s policy for safeguarding its data: https://support.google.com/analytics/answer/6004245.
11.10.5 Facebook. Facebook, Facebook Ads, Facebook Pixel, and its related products are provided by Meta Platforms Inc. For more information on what type of information Meta Platforms collects, please visit the Privacy Policies: https://www.facebook.com/about/privacy/previous.
11.10.6 Shopify. Shopify and its associated API(s) are operated by Shopify Inc. By using the Company Platform you agree to abide by all requirements of the Shopify API(s) and may not abuse them or violate their terms and conditions. The Shopify terms and API license are listed here: https://www.shopify.com/legal/api-terms. For more information on what type of information Shopify collects, please visit the terms and conditions: https://www.shopify.com/legal/privacy.
11.11 Other Service(s). Company uses various other APIs in its platforms. By using the Company Platform all users of Company agree to abide by the terms and conditions set forth in each app(s) which are enabled.
12. Entire Agreement
12.1 Overview. This Agreement constitutes the entire Agreement of the parties with respect to the subject matter hereof and supersedes all prior Agreements and understandings, oral or written, with respect thereto. No action taken pursuant to this Agreement and no investigation by or on behalf of any party hereto shall be deemed to constitute a waiver by such party of compliance with any representation, warranty, covenant or Agreement herein. The waiver by any party hereto of any condition or of a breach of another provision of this Agreement shall not be construed as a waiver of any other condition or subsequent breach. This Agreement shall take the highest precedence over any other documents that may be in conflict therewith.