LOOP SOFTWARE SERVICE AGREEMENT (SSA) EXECUTING THIS AGREEMENT:
This AGREEMENT is entered into as of the EFFECTIVE DATE by and between HeavenGroup Inc. (“LOOP”, “We”, “Our” or “Us”), a Delaware corporation, and a business or individual (“SUBSCRIBER”, “You” or “Your”), collectively referred hereinafter as the PARTIES. LOOP provides its Services to SUBSCRIBERS through websites and mobile applications (the “User Website”), whose use is subject to these Terms.
BY ACCESSING, VIEWING OR USING ALL OR ANY PART OF THE LOOP SERVICES, SITES OR DIGITAL ASSETS, OR DOWNLOADING ANY MATERIALS, OR BY COMPLETING ANY REGISTRATION PROCESS VIA THE USER WEBSITE, YOU ARE ACCEPTING THE TERMS OF THE LOOP SOFTWARE SERVICE (SSA) AGREEMENT (“AGREEMENT”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU CANNOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES OR CONTENT.
Now therefore, in consideration of the mutual covenants set forth herein, the PARTIES agree as follows:
Article I – Definitions
COMPILED DATA shall mean a portion of SUBSCRIBER DATA, aggregated with data obtained from other LOOP subscribers for the purposes of, among other things, producing indices, statistics, summaries, and industry reports for use by LOOP subscribers. COMPILED DATA shall not reveal proprietary or identifying information about SUBSCRIBER or SUBSCRIBER’s customers. CONFIDENTIAL INFORMATION shall have the meaning provided in Article VII. EFFECTIVE DATE shall mean the earlier of (i) two (2) weeks from the date of purchase of the SOFTWARE SERVICE or (ii) the first date on which SUBSCRIBER uses SOFTWARE SERVICE, unless separately arranged between the parties in writing.
ENTRY LICENSE shall mean a non-exclusive, non-transferable right to access, use, display, run, or otherwise interact with the SOFTWARE SERVICE subject to the terms and conditions set forth in this AGREEMENT.
LOCATIONS shall mean the locations where the SUBSCRIBER operates its business. MONTHLY SUBSCRIPTION FEE shall mean the monthly fee for the SOFTWARE SERVICE as set forth in the RECEIPT. EMPLOYEE shall mean any employee, agent or service contractor of SUBSCRIBER. RECEIPT shall mean the receipt received by SUBSCRIBER via email at the time SUBSCRIBER received this AGREEMENT describing the SOFTWARE SERVICE and MONTHLY SUBSCRIPTION FEE.
STARTUP TRAINING shall mean live training provided by a LOOP professional trainer to SUBSCRIBER while SUBSCRIBER is in the process of implementing the SOFTWARE SERVICE. Such training is delivered via telephone and optional Internet link.
REPRESENTATIVES shall have the meaning provided in Article VII.
SCHEDULED MAINTENANCE shall mean periodic planned SOFTWARE SERVICE as may be necessary from time to time to maintain optimum system performance, and which are announced in advance by LOOP. SERVICES shall mean optional offerings available from LOOP such as data imports, supplemental trainings, and other services not required to use SOFTWARE SERVICE.
SOFTWARE SERVICE and SSA shall mean the LOOP SOFTWARE SERVICE identified in the RECEIPT as the service purchased by SUBSCRIBER subject to this AGREEMENT, and is priced according to the quantity and size of SUBSCRIBER business units and locations. The SOFTWARE SERVICE includes any users guide, multimedia content, and relevant documentation made available through the SOFTWARE SERVICE and LOOP’s website, and any other materials provided to SUBSCRIBER by LOOP pursuant to this AGREEMENT.
SUBSCRIBER’S CUSTOMERS shall mean the businesses or individuals scheduling and purchasing products and services from SUBSCRIBER.
SUBSCRIBER DATA shall mean any data stored by SUBSCRIBER on LOOP’s host computer system using the SOFTWARE SERVICE, entered by SUBSCRIBER using the SOFTWARE SERVICE. This data is the sole property of SUBSCRIBER and shall be held confidential by LOOP in accordance with the terms and conditions of Article VII of this Agreement.
SUBSCRIBER PUBLIC DATA shall mean that portion of SUBSCRIBER DATA that SUBSCRIBER wishes to display online such as reviews from CUSTOMERS.
SUBSCRIPTION TERM means the period for which the SUBSCRIBER uses the SOFTWARE SERVICES until either party terminates SUBSCRIBER’S right to use the SOFTWARE SERVICES in accordance with Article XI of this Agreement.
Article II – Description of SOFTWARE SERVICE and REQUIREMENTS
Operation, Maintenance, and Security of SOFTWARE SERVICE1. LOOP will operate and maintain the SOFTWARE SERVICE. LOOP reserves the right to replace, modify, and/or upgrade the SOFTWARE SERVICE purchased by SUBSCRIBER in its sole discretion, and will notify SUBSCRIBER of any pending user interface changes resulting from such replacements, modifications, and upgrades at least three (3) days in advance of releasing such change. Any replacement or upgrade to such SOFTWARE SERVICE shall be treated as part of the SOFTWARE SERVICE for the purpose of this AGREEMENT.2. LOOP will provide all equipment, software, and security services necessary for the operation and maintenance of its hosted computer system. LOOP reserves the right to change the configuration of its hosted computer system and change or delete equipment or software at any time.3. LOOP will provide sufficient bandwidth and processor capability to enable SUBSCRIBER and SUBSCRIBER’S EMPLOYEES and CUSTOMERS the use of the SOFTWARE SERVICE.
SUBSCRIBER will maintain the functional operation of all of its mobile devices, workstations, networks, and Internet connections necessary to ensure proper operation of the SOFTWARE SERVICE, including installation and operation of any associated operating system and web browser according to applicable manufacturer specifications and recommendations.2. Prior to contacting LOOP concerning connectivity problems, SUBSCRIBER shall verify that it is able to properly connect to the Internet by verifying navigation through common websites, such as www.cnn.comor www.google.com, and verify that it is running the most recent release of Internet Explorer, Mozilla Firefox, Chrome or Safari. Technical Requirements. The communications and network for the SOFTWARE SERVICE require a high-speed Internet connection, modern web browser, and modern smartphone and modern computer.
Article III – Ownership of Data
Ownership, Maintenance and Use of SUBSCRIBER DATA1. SUBSCRIBER DATA is owned by the SUBSCRIBER identified during the acceptance of this AGREEMENT. Further, the Parties acknowledge that the person who provides payment for the SOFTWARE SERVICE and other services may or may not be the owner of SUBSCRIBER DATA.
In the event of an ownership dispute, LOOP, at its sole discretion, reserves the right to restrict access to the SOFTWARE SERVICE solely for the purpose of resolving such ownership dispute. SUBSCRIBER agrees that it is their responsibility to provide proper documentation to LOOP in order to resolve any ownership dispute.
SUBSCRIBER further agrees that LOOP has no responsibility to determine proper ownership in the event of a SUBSCRIBER ownership dispute.
2. Subject to the provisions of Article III, 2 below, SUBSCRIBER shall own SUBSCRIBER DATA at all times.
3. SUBSCRIBER is solely responsible for SUBSCRIBER DATA entered bySUBSCRIBER as well as its EMPLOYEES and customers.
SUBSCRIBER shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of SUBSCRIBER DATA and SUBSCRIBER PUBLIC DATA. SUBSCRIBER warrants to LOOP that SUBSCRIBER DATA and SUBSCRIBER PUBLIC DATA does not violate applicable law or the rights of any third party.
Access to SUBSCRIBER DATA
SUBSCRIBER may download portions of the SUBSCRIBER DATA directly from the SOFTWARE SERVICE in Microsoft Excel format by using the reporting and exporting tools provided by LOOP within the SOFTWARE SERVICE.
SUBSCRIBER is responsible for maintaining the security of any copy ofthe SUBSCRIBER DATA received pursuant to this Article II, 1.
SUBSCRIBER, at its option, may grant any trusted third party access to the SUBSCRIBER DATA by delivering to LOOP a copy of a signed authorization as provided in Exhibit B.
LOOP ANALYTICS – Ownership and Access to COMPILED DATA
LOOP will compile aggregate components of SUBSCRIBER DATA together with information received from LOOP’s other subscribers to create COMPILED DATA.
LOOP agrees that COMPILED DATA will be presented in an aggregate manner only and will not reveal proprietary or personal, identifying information about SUBSCRIBER or SUBSCRIBER’S CUSTOMERS.
SUBSCRIBER acknowledges and agrees that COMPILED DATA isowned solely by LOOP, and will be used by LOOP, in part, in connection with its LOOP ANALYTICS SERVICE.
If purchased as an additional value added service by SUBSCRIBER, LOOP shall provide SUBSCRIBER with access to COMPILED DATA for use in connection with SUBSCRIBER’s business.
Article IV – Other Services
The following SERVICES are included in the fees set forth in Article V,
SUBSCRIBER may elect in writing to LOOP to have LOOP import SUBSCRIBER’s EMPLOYEES names and contact information upon startup of the SOFTWARE SERVICE. This election must be made within thirty (30) days of the EFFECTIVE DATE. If SUBSCRIBER makes this election, then the following will apply:i. LOOP will provide a one-time importation of SUBSCRIBER’S EMPLOYEES names, notes and contact information from any single open database format, including, but not limited to .txt, .xls, and .csv. SUBSCRIBER will provide LOOP with its EMPLOYEE names and contact information in an open, unlocked, un-password protected format within thirty(30) days of the EFFECTIVE DATE.
LOOP will provide STARTUP TRAINING sessions not to exceed the following durations per business location identified in the RECEIPT:
SUBSCRIBER may contact LOOP for further information. Notwithstanding the foregoing, LOOP agrees to provide SUBSCRIBER with additional support needed to optimize use of the SOFTWARE SERVICE at no additional charge.
Supplemental Training. In the event that SUBSCRIBER wishes to have any STARTUP TRAINING in addition to such training provided pursuant to Article IV, 1, 2 such additional STARTUP TRAINING may be provided to SUBSCRIBER at an additional charge based on LOOP’s hourly rates in effect at the time of such additional STARTUP TRAINING.
These fees are subject to change at any time.
Article V – Payment
Fees & Payment Options Changes in Fees.
LOOP reserves the right to change the MONTHLY SUBSCRIPTION FEE if SUBSCRIBER wishes to manage additional business units and/or LOCATIONS beyond those specified on the RECEIPT.
3. Payment Terms. All amounts set forth in this article shall be due and payable when specified in this AGREEMENT. Any payment not received within thirty (30) days of the applicable due date shall be considered a breach of this AGREEMENT and LOOP shall be entitled to terminate this AGREEMENT as provided below, and to deactivate SUBSCRIBER’s account with LOOP. In the event that LOOP deactivates SUBSCRIBER’s account for late payment and LOOP decides to reactivate such account at SUBSCRIBER’s request, SUBSCRIBER shall pay LOOP a one hundred and fifty dollar ($150) reactivation fee per SUBSCRIBER location prior to any such reactivation.
The SUBSCRIBER shall provide to LOOP by the Effective Date, valid, up-to-date and complete payment information which shall be provided in at least one (1) of the following forms: credit card, checking account, or approved purchase order, all of which must be in a format that is acceptable to LOOP, and any other relevant valid, up-to- date and complete contact and billing details. The following conditions shall apply to each selected payment option:
Credit card – the SUBSCRIBER hereby authorizes LOOP to bill such credit card:
On the EFFECTIVE DATE for the SUBSCRIPTION FEES payable in respect to the Initial SUBSCRIPTION TERM; and subject to clause Article XI, on each anniversary of the EFFECTIVE DATE for the SUBSCRIPTION FEES payable; Checking account – the SUBSCRIBER hereby authorizes LOOP to collect the MONTHLY SUBSCRIPTION FEES via automatic ACH payment from SUBSCRIBER’s checking account:
On the EFFECTIVE DATE for the SUBSCRIPTION FEES payable in respect of the Initial SUBSCRIPTION TERM; and subject to clause Article XI, on each anniversary of the EFFECTIVE DATE for the SUBSCRIPTION FEES payable; Purchase order – LOOP shall invoice the SUBSCRIBER:
on the EFFECTIVE DATE for the SUBSCRIPTION FEES payable in respect of the Initial SUBSCRIPTION TERM; and subject to Article XI, at least 30 days prior to each anniversary of the EFFECTIVE DATE for the SUBSCRIPTION FEES payable.
LOOP 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, assessable by any jurisdiction whatsoever (collectively, “Taxes”). SUBSCRIBER is responsible for paying all Taxes associated with SUBSCRIBER purchases hereunder. If LOOP has the legal obligation to pay or collect Taxes for which SUBSCRIBER is responsible under this Section (IV), LOOP will invoice the SUBSCRIBER for payment unless a valid tax exemption certificate authorized by the appropriate taxing authority is provided. For clarity, LOOP is solely responsible for taxes assessable against LOOP based on income, property and employees.
Article VI – Intellectual Property
LOOP Intellectual Property. LOOP shall have sole and exclusive ownership of all right, title, and interest in and to LOOP Intellectual Property. SUBSCRIBER shall have sole and exclusive ownership of all right, title, and interest in all SUBSCRIBER DATA.
The SOFTWARE SERVICE (including any LOOP provided images, photographs, animations, video, audio, music, text, and applets); All derivatives, modifications and enhancements thereof (including ownership of all trade secrets and copyrights pertaining thereto), subject only to the rights and privileges expressly granted to SUBSCRIBER herein by LOOP; The COMPILED DATA. This AGREEMENT does not provide SUBSCRIBER with title or ownership of the SOFTWARE SERVICE, the COMPILED DATA, or any components thereof, but only a right of limited use as specified in Article VI.
The LOOP mark, the LOOP logo and the LOOP url and the Threefinity symbol are trademarks of LOOP, Copyright © 2014, all rights reserved. No part of this Agreement or any content on the LOOP website may be copied for any purpose without the express written permission of LOOP.
WARNING. NO TRESPASSING
– The SITE is maintained by LOOP and is intended for the exclusive use and benefit of LOOP, its customers, prospective customers, authorized partners, vendors, prospective vendors, employees and prospective employees (collectively, the “Authorized Persons”). No other persons are authorized to visit or enter the User Website for any purpose. All information contained on the SOFTWARE SERVICE is proprietary to LOOP and usage thereof shall be subject to an ENTRY LICENSE granted by LOOP. Persons entering the SOFTWARE SERVICE, whether authorized or not, shall be deemed to have automatically accepted the terms and conditions of the ENTRY LICENSE at the time of initial entry. If any unauthorized person attempts to visit or enter the SOFTWARE SERVICE, they shall be deemed to be trespassing on the SOFTWARE SERVICE and be liable for damages, etc. resulting therefrom. Notwithstanding anything in ENTRY LICENSE to the contrary, no person, authorized or not, shall be entitled to copy, extract, “scrape,” decompile, or otherwise use information, etc. located on or contained in the SOFTWARE SERVICE unless they enter into a limited license (the “Limited License”). Violation of the provisions of the foregoing licenses shall constitute, among other offenses, trespass, breach of contract, and entry of a computer without authority with the intent to cause damage.
Article VII – License
Rights Granted. In addition to the limited license granted by LOOP to SUBSCRIBER as to the use of the COMPILED DATA provided in Article II, 1 above, LOOP grants SUBSCRIBER an ENTRY LICENSE to access, use, display, run, or otherwise interact with the SOFTWARE SERVICE subject to the terms and conditions set forth in this AGREEMENT. LOOP grants SUBSCRIBER’S EMPLOYEES the right to review EMPLOYEE DATA and for any other use that LOOP shall make available using the EMPLOYEES in the future. SUBSCRIBER acknowledges and agrees that the SOFTWARE SERVICE is licensed on a per LOCATION basis, and the rights of any licensed user to access and/or utilize the SOFTWARE SERVICE may not be shared between LOCATIONS and any third party or used by any third party, except as otherwise authorized by SUBSCRIBER in accordance with the terms and conditions contained in attached Exhibit B.
Limitation on Rights Granted. LOOP reserves all rights not expressly granted herein.
Restrictions. SUBSCRIBER shall not, in whole or in part, directly or indirectly: (a) reverse engineer, disassemble, decompile, translate, reproduce, modify, alter or otherwise attempt to access or derive the source code or the underlying ideas, algorithms, structure or organization of the SOFTWARE SERVICE or reduce the SOFTWARE SERVICE to a human-perceivable form; (b) remove any copyright notices, logos, identification or any other proprietary notices from the SOFTWARE SERVICE; (c) make any change to the SOFTWARE SERVICE or create any derivative works thereof; or (d) publish, sell, rent, lease, sublicense, transfer, transmit, resell, or distribute the SOFTWARE SERVICE or any part thereof.
Article VIII – Confidentiality
CONFIDENTIAL INFORMATION. For the purposes of this Article VIII, CONFIDENTIAL INFORMATION shall include the SOFTWARE SERVICE, the SUBSCRIBER DATA, and any accompanying or related information and documentation. CONFIDENTIAL INFORMATION does not include information which is:
Developed by the non-disclosing party independently of the disclosing party as supported by the non-disclosing party’s written records; Rightfully obtained without restriction by the non-disclosing party from a third party; At the time of disclosure or thereafter becomes publicly available other than through the fault or negligence of the non-disclosing party; Released without restriction by the disclosing party to anyone including the U.S. Government as supported by the non-disclosing party’s written records; and Known to the non-disclosing party at the time of disclosure as supported by the non-disclosing party. Protection of CONFIDENTIAL INFORMATION
During the term of this AGREEMENT and for a period of five (5) years after its termination or expiration, the PARTIES agree they shall not disclose any of the CONFIDENTIAL INFORMATION in any manner whatsoever, except as provided in subparagraphs (b) and (c) below, and shall hold and maintain the CONFIDENTIAL INFORMATION in strictest confidence.
A party may disclose CONFIDENTIAL INFORMATION to such party’s directors, officers, employees, agents; and financial, legal, other advisors and affiliates (collectively, REPRESENTATIVES) with a bona fide need to know such CONFIDENTIAL INFORMATION, but only to the extent necessary to evaluate or carry out the terms of this AGREEMENT and only if such REPRESENTATIVES are advised of the confidential nature of such CONFIDENTIAL INFORMATION and the terms of this AGREEMENT and are bound by a written agreement or by a legally enforceable code of professional responsibility to protect the confidentiality of such CONFIDENTIAL INFORMATION. Further, the PARTIES acknowledge and agree that nothing in this Article VII shall prohibit the collection, compilation and distribution of any COMPILED DATA by LOOP in accordance with Article II, 1 of this AGREEMENT.
A party may disclose CONFIDENTIAL INFORMATION if and to the extent that such disclosure is required by court order, provided that such party provides the other party a reasonable opportunity to review the disclosure before it is made and to interpose its own objection to the disclosure. The CONFIDENTIAL INFORMATION is being disclosed to the PARTIESand the PARTIES receive the CONFIDENTIAL INFORMATION solely for the purpose stated herein and specifically agree not to use the CONFIDENTIAL INFORMATION for any other purpose.
Article IX – Limited Warranty/Limitation on Liability
SOFTWARE SERVICE WarrantyCircumstances beyond LOOP’s reasonable control, including, but not limited to, war, insurrection, sabotage, terrorism, armed conflict, embargo, fire, flood, earthquake, Internet virus, or denial of service attacks;
LOOP functionality that requires intermittent scripts (e.g. automatic database queries e-mails, and maintenance on expired series) will finish by midnight of their scheduled date. If any of the LOOP nightly scripts do not finish by midnight of their scheduled date, then LOOP will notify the SUBSCRIBER of the delay and forecasted completion date of the nightly scripts via email. SUBSCRIBER understands and acknowledges that the timely and successful completion of these scripts is, in part, dependent on third parties including payment processors and that LOOP cannot provide any assurances as to the reliability and functionality of any third party processes.
To qualify for the LOOP SOFTWARE SERVICE warranty, SUBSCRIBER must maintain a subscription for a minimum of 12 months.
LOOP warrants that the SOFTWARE SERVICE shall be 99.9% available twenty-four (24) hours per day, seven (7) days per week, three-hundred and sixty-five (365) days per year. This translates to eight(8) hours and forty-five (45) minutes of unplanned outage time as measured over 12 months, and in accordance with Article IX. Our server inventory will be expanded to accommodate the SUBSCRIBER’s progressive data expansion. Hardware expansion will keep up with theneeds of SUBSCRIBER so that the SUBSCRIBER’s site performance will not be slowed by either the SUBSCRIBER’s data expansion or the addition of new subscribers to the LOOP servers.
If the cumulative service level for the SOFTWARE SERVICE drops below 99.9% for any 12 rolling month period, as first measured from the EFFECTIVE DATE of service and then continuing in rolling 12 month measurements thereafter, LOOP will credit SUBSCRIBER with a complimentary month of service to be credited in the month following the drop in the cumulative availability below the 99.9% warranted availability. In order to receive any credit of free service pursuant to this Article IX, SUBSCRIBER shall notify LOOP in writing no later thirty (30) days after the end of the 12 month rolling period in which the availability of the SOFTWARE SERVICE fell below the warranted level of SUBSCRIBER’s intent to collect the free service related to such shortcoming in availability during the following month of service. To the extent LOOP does not receive timely notice from SUBSCRIBER as provided in this paragraph: LOOP shall have no further obligation to provide SUBSCRIBER any free service; and SUBSCRIBER shall be deemed to have waived and released LOOP as to any and all claims related to its use or non-use of the SOFTWARE SERVICE as to the applicable twelve month period SUBSCRIBER shall not receive any credit or refund under this Article IX in connection with any failure or deficiency caused by or associated with any of the following: Major telecommunications or Internet failure outside of LOOP’s control; Acts or omissions of SUBSCRIBER, its employees, or its agents, including, without limitation, custom scripting or coding, any negligence, willful misconduct, or use of the SOFTWARE SERVICE outside the scope of this AGREEMENT; and SCHEDULED MAINTENANCE conducted between the hours of 9 PM and 9 AM in the Pacific Standard Time Zone and SUBSCRIBER is notified at least forty-eight (48) hours in advance of such SCHEDULED MAINTENANCE.
DISCLAIMER OF FURTHER WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN THIS ARTICLE, THE SOFTWARE SERVICE IS PROVIDED AS IS AND WITH ALL FAULTS. NO WARRANTY OR ASSURANCE, EXPRESS, IMPLIED, OR STATUTORY, IS GIVEN BY LOOP WITH RESPECT TO THE SOFTWARE SERVICE OR ANY OTHER MATTER, INCLUDING, WITHOUT LIMITATION (AND LOOP EXPRESSLY DISCLAIMS) ALL WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON- INFRINGEMENT, LACK OF VIRUS, NEGLIGENCE, OR LACK OF WORKMANLIKE EFFORT ON THE PART OF LOOP.
LIMITATION OF LIABILITY1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE PARTIES BE LIABLE, WHETHER IN CONTRACT, IN TORT, OR UNDER ANY OTHER LEGAL THEORY (INCLUDING, BUT NOT LIMITED TO STRICT LIABILITY AND NEGLIGENCE) FOR LOST PROFITS OR REVENUES, LOSS OR INTERRUPTION OF USE, LOST OR DAMAGED DATA, REPORTS, DOCUMENTATION, OR SECURITY, OR SIMILAR ECONOMIC LOSS, LOSS OF PRIVACY, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LOOP BE LIABLE FOR ANY CLAIM MADE AGAINST SUBSCRIBER BY ANY OTHER PARTY, EVEN IF LOOP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM.3. IN NO EVENT SHALL LOOP’S LIABILITY UNDER ANY CLAIM MADE BY SUBSCRIBER EXCEED THE TOTAL AMOUNT OF FEES THERETOFORE PAID BY SUBSCRIBER IN THE CURRENT CONTRACT YEAR. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT MAY BE BROUGHT BY SUBSCRIBER MORE THAN ONE (1) YEAR AFTER THE FIRST TO OCCUR OF i. THE TERMINATION OR EXPIRATION OF THIS AGREEMENT; OR ii.THE EVENT GIVING RISE TO SUCH CAUSE OF ACTION
Use of Trademark
SUBSCRIBER agrees to indemnify and hold LOOP, its subsidiaries, affiliates, officers, directors, agents, and employees harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of SUBSCRIBER’s breach of this AGREEMENT, SUBSCRIBER’s violation of any law, or SUBSCRIBER’s violation of the rights of a third party, including the infringement by SUBSCRIBER of any intellectual property or other right of any person or entity. These obligations will survive any termination of the terms of this AGREEMENT.
SUBSCRIBER hereby authorizes LOOP to list SUBSCRIBER as a subscriber of LOOP on LOOP’S website, and include SUBSCRIBER’s name and trademarks in LOOP’s public directories. LOOP will provide SUBSCRIBER with the ability to remove SUBSCRIBER’s name, information, and trademark from these public directories at any time. SUBSCRIBER assumes sole responsibility for the protection of any copyrights, trademarks, service marks, trade names and other intellectual property owned wholly or partially by SUBSCRIBER or which SUBSCRIBER is authorized to use or display. If LOOP receives notice or documentation demonstrating that another person or entity contests SUBSCRIBER’s right to use or display a name, trademark, service mark or other content, LOOP may, in its sole discretion, reject or discontinue listing SUBSCRIBER on the LOOP website without liability to SUBSCRIBER or LOOP until such time as SUBSCRIBER has resolved that dispute with the other party to LOOP’s satisfaction.
LOOP does not make it its responsibility to monitor the use of trademarks, copyrights or other rights of SUBSCRIBER or third parties. LOOP may, however, in appropriate circumstances and in LOOP’s sole discretion, remove, suspend, terminate access, or take other appropriate action against subscribers who infringe the copyright rights of others. Therefore, if SUBSCRIBER reasonably believes that any materials on LOOP’s website contain unauthorized reproductions of SUBSCRIBER’s copyrighted work or trademarks, and SUBSCRIBER wants LOOP to take any action, then SUBSCRIBER must provide the following information to LOOP (as required under the Digital Millennium Copyright Act (17 U.S.C. sec. 512)): A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; Identification of the copyrighted work claimed to have been infringed; Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit LOOP to locate the material; Information reasonably sufficient to permit LOOP to contact SUBSCRIBER, such as an address, telephone number and email address; A statement that SUBSCRIBER has a good faith belief that the use of the material in the manner complained of is not authorized by the owner, its agent or the law; and A statement that the information in the notice is accurate, and under penalty of perjury, that SUBSCRIBER is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Please e-mail this information to info@SpaLoop.com.
Article X – Term / Termination
Term. The Term of this agreement commences on the EFFECTIVE DATE and shall continue on a month to month basis until terminated by either party in accordance with the terms contained in Article X, section 2. Termination. SUBSCRIBER may terminate this AGREEMENT for any reason by providing advance written notice via email to info@SpaLoop.com at least 30 days prior to the EFFECTIVE DATE of the termination. LOOP may terminate this AGREEMENT for any reason by providing notice to the SUBSCRIBER’S email address on file at the time with at least 30 days notice prior to the termination date.
Termination for Cause. In the event of a data breach or default of this AGREEMENT by SUBSCRIBER, LOOP shall have the right to terminate this AGREEMENT by giving thirty (30) days written notice to the SUBSCRIBER. In the event of any breach or default of this AGREEMENT by LOOP, SUBSCRIBER shall have the right to terminate this AGREEMENT by giving thirty (30) days written notice to LOOP; provided, however, that LOOP shall have the right to cure said reason for the termination during the thirty (30) day notice period, and in the event of a cure by LOOP, said termination shall be null and void and this AGREEMENT shall remain in full force and effect. SUBSCRIBER will not have the right to cancel any portion of this AGREEMENT and/or receive a refund pursuant to Article IX if SUBSCRIBER has breached this AGREEMENT.
Data Portability and Deletion. Upon the termination of this AGREEMENT by either party, the SUBSCRIBER may: Perform a Free Data Download. Within 30 days after the EFFECTIVE DATE of termination, SUBSCRIBERS are permitted to download a FREE copy of current SUBSCRIBER DATA, via the reporting feature of the SOFTWARE SERVICE.
Request an Assisted Data Download. For a Fee, the SUBSCRIBER may request LOOP provide a copy of SUBSCRIBER DATA, via a PCI-DSS approved secure file transfer method within five (5) business days of such request. Upon the 31st day after the EFFECTIVE DATE of the termination, LOOP will have no further obligation to maintain or provide SUBSCRIBERS DATA, and will thereafter delete and/or destroy all copies of SUBSCRIBER DATA in LOOP’s systems or otherwise in LOOP’s possession or control, unless legally prohibited.
Effect of Termination. Upon termination of this AGREEMENT for any reason, all fees set forth in Article IV shall become immediately due and payable.
Article XI – Indemnity
The PARTIES agree to indemnify, defend, and hold each other, their officers, directors, shareholders, employees, and authorized agents harmless from and against any and all claims, damages and expenses (including, without limitation, attorneys’ fees) resulting directly or indirectly from:
SUBSCRIBER shall indemnify, defend, and hold LOOP, its officers, directors, shareholders, employees, and authorized agents harmless from and against any and all claims, damages and expenses (including, without limitation, attorneys’ fees) resulting directly or indirectly from access to or use or misuse of the SUBSCRIBER DATA by SUBSCRIBER, its REPRESENTATIVES, or affiliates. This Article XI shall survive the termination of this AGREEMENT.
The operation, maintenance, and content of the SOFTWARE SERVICE; SUBSCRIBER’s use of the SOFTWARE SERVICE; Failure by SUBSCRIBER to comply with any applicable privacy laws; and Any breach of this AGREEMENT by the PARTIES.
Article XII – Miscellaneous
Choice of Law and Forum for Disputes. This AGREEMENT shall be governed in all respects by the laws of the State of New York without regard to conflict of law provisions. The Parties agree that any claim or dispute in connection with this AGREEMENT must be resolved by a court located in New York County, New York, except as otherwise agreed by the Parties. Each Party agrees to submit to the personal jurisdiction of the courts located within New York County, New York for the purpose of litigating all claims or disputes.
Assignment and Assumption. This AGREEMENT may not be assigned by SUBSCRIBER without the prior written consent of LOOP, which may be withheld at LOOP’s sole discretion. LOOP may require any proposed assignee of this AGREEMENT to enter into a new written agreement with LOOP. LOOP may assign this AGREEMENT to any person or entity, and thereafter be relieved of all liability hereunder.
All notices, requests, demands, and other communications shall be validly given if delivered in person, facsimile transmission, sent by electronic mail, or forwarded by registered or certified mail addressed to the other party at the address provided in the signature block of this AGREEMENT, unless such party has notified the other party of a substitute contact information in writing pursuant to this article.
Notices delivered in person or sent via facsimile or electronic mail during normal business hours shall be deemed to be received on the same date. Notices forwarded by registered or certified mail shall be deemed to be delivered three (3) days after such notice was mailed.
Relationship. The PARTIES shall do business at their own risk and for their own profit. Nothing in this AGREEMENT shall constitute a partnership or agency relationship between SUBSCRIBER and LOOP or authorize either party to make any representation on behalf of or in any way to bind the other party to any obligation of any kind, express or implied, to any third party, or to incur any liability on behalf of the other party.
Government Regulations. SUBSCRIBER shall at its own expense comply with all laws, ordinances, rules, regulations and other requirements of the government having jurisdiction pertaining to or in relation to any matter connected with or arising out of this AGREEMENT.
If any of the provisions of this AGREEMENT shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the other portions of this AGREEMENT shall remain in full force and effect.
No liability hereunder shall result to a party by reason of delay in performance caused by force majeure, that is, circumstances beyond the reasonable control of the party, including, without limitation, acts of God, fire, flood, war, terrorist attack, civil unrest, labor unrest, or shortage of or inability to obtain material as equipment.
The failure of either party to enforce at any time or for any period of time, the provisions hereof in accordance with their terms will not be construed to be a waiver of such provisions or of the right of such party thereafter to enforce each and every such provision.
No Third Party Beneficiary. The benefits and protection provided by this AGREEMENT shall inure solely to the benefit of the PARTIES. This AGREEMENT shall not be deemed to create any right in any person or entity who is not a party to this AGREEMENT and shall not be construed in any respect to be a contract in whole or in part for the benefit of any third party.
All questions and requests for customer service and/or technical support should be directed to LOOP at the Contact Us section of the Website www.SpaLoop.com
Exhibit A – Maintenance and Security of SUBSCRIBER DATA
LOOP hosts SUBSCRIBER DATA at a secure and redundant data center. The data center is secured and monitored 24x7x365 by a staff of highly trained data center facility experts. The primary data center features:
i. Zone 4 earthquake-rated reinforced structure
ii. Multiple redundant, enterprise switching hardware at every stage;
iii. A monitoring system providing real-time data on equipment operation, enabling instant identification of problems.
iv. Multiple paralleled N+1 UPS modules configured in redundant systems allow for A/B power configuration.
v. 20 megawatts of expandable N+1 power backup utilizing Caterpillar diesel generators.
vi. Very Early Smoke Detection Alarm (VESDA) early smoke detection with pre- action dry pipe fire suppression systems.
vii. Multiple fiber route entrances to building.
viii. Access control systems leveraging biometric scan and personal identification number (PIN), with separate locks for all LOOP server cabinets, and Security Provisions LOOP technical or management personnel with access to SUBSCRIBER DATA must sign non-disclosure and data security agreements that protect both LOOP and SUBSCRIBER DATA.
Physical access to the primary data center and the backup data center is restricted by 24×7 on-site security and Network Operations Center (NOC) staff. The facility is controlled by alarm systems with cameras on perimeter points of the building along with video and camera surveillance within facility. Multi-level access authorization with man trap, biometric verification and security controlled access level assignments are used to verify a limited number of authorized personnel who have been granted access.
LOOP personnel are not permitted to transfer SUBSCRIBER DATA onto any hard drive or storage device, except those contained within either the primary data center or backup data center. SUBSCRIBER DATA is not transferred to LOOP corporate workstations.
All SUBSCRIBER DATA is located on secure servers, or backup directories that require access authentication.
All secure servers are protected by multiple, redundant firewalls and intrusion detection and prevention systems that are regularly monitored and tested (details of firewall configuration are not shared publicly for maximum security).
Exhibit B – Granting Third Party Access of SUBSCRIBER DATA
SUBSCRIBER has the option to grant a third party access to SUBSCRIBER DATA by specifying the third party below. The THIRD PARTY shall mean a business or individual that does not have direct ownership of the SUBSCRIBER DATA maintained by LOOP. If SUBSCRIBER chooses, Exhibit C can grant THIRD PARTY access to the SUBSCRIBER’s data that is hosted and maintained by LOOP.
By entering a THIRD PARTY’s name below, SUBSCRIBER hereby gives consent to LOOP to grant access to SUBSCRIBER DATA via LOOP’s API services or web interface.
SUBSCRIBER also hereby agrees that the THIRD PARTY’s usage of SUBSCRIBER DATA is governed by a separate agreement between SUBSCRIBER and the THIRD PARTY, and that LOOP will not be held liable for the THIRD PARTY’s usage of SUBSCRIBER DATA. SUBSCRIBER shall ensure that THIRD PARTY at all times maintains the confidentiality of the SUBSCRIBER DATA, SOFTWARE SERVICE, and any accompanying or related documentation as required in Article VII of the AGREEMENT.
SUBSCRIBER shall indemnify, defend, and hold LOOP, its officers, directors, shareholders, employees and authorized agents, harmless from and against any and all claims, damages and expenses (including, without limitation, attorney’s fees) resulting directly or indirectly from the THIRD PARTY’s access to or use of the SUBSCRIBER DATA or SOFTWARE SERVICE. This indemnification obligation shall survive the termination of the AGREEMENT.
THIRD PARTY access to SUBSCRIBER DATA shall continue until SUBSCRIBER notifies LOOP in writing to cease THIRD PARTY access. If this AGREEMENT is only agreed to via electronic confirmation, then the THIRD PARTY will not be granted access to SUBSCRIBER DATA, because electronic confirmation does not allow for entering a THIRD PARTY’s name on the lines below. To contractually grant the THIRD PARTY access to SUBSCRIBER DATA, this AGREEMENT must be printed and signed by SUBSCRIBER, then scanned and emailed to info@SpaLoop.com. SUBSCRIBER should only complete this exhibit if granting a THIRD PARTY access to SUBSCRIBER DATA.
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