Effective date: August 11, 2023
PLEASE READ THIS MASTER SOFTWARE AS A SERVICE AGREEMENT (AGREEMENT) CAREFULLY BEFORE USING THE SERVICES OFFERED BY BIKKY, INC. (BIKKY). BY ACCEPTING THIS AGREEMENT OR CLICKING A BOX INDICATING ACCEPTANCE, OR ENTERING INTO AN ORDER FORM (AS DEFINED BELOW) THAT REFERENCES THIS AGREEMENT, YOU (CUSTOMER) AGREE TO BE BOUND BY THIS AGREEMENT (TOGETHER WITH ALL ORDER FORMS) TO THE EXCLUSION OF ALL OTHER TERMS. CUSTOMER’S CONTINUED USE OF THE SERVICES SHALL ALSO CONSTITUTE ASSENT TO THIS AGREEMENT. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.
IF THE INDIVIDUAL ACCEPTING THE AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THE TERMS AND CONDITIONS HEREIN, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MUST NOT USE THE SERVICES.
MASTER SOFTWARE AS A SERVICE AGREEMENT
Affiliates means (a) an entity of which a party directly or indirectly owns fifty percent (50%) or more of the stock or other equity interest, (b) an entity that owns at least fifty percent (50%) or more of the stock or other equity interest of a party, or (c) an entity which is under common control with a party by having at least fifty percent (50%) or more of the stock or other equity interest of such entity and a party owned by the same person, but such entity shall only be deemed to be an Affiliate so long as such ownership exists.
Customer Data means all data, information, and other materials submitted by Customer to the Services.
Documentation means any user guide, help information and other documentation and information regarding the Services that is delivered by Bikky to Customer in electronic or other form, if any, including any updates provided by Bikky from time to time.
Order Form means a Bikky online subscriptions page or online or written ordering document referencing this Agreement and specifying the Services to be provided hereunder that is entered into between Customer and Bikky. For clarity, any online order form submitted by Customer via Bikky’s standard online process and accepted by Bikky shall be deemed to be entered into by the parties.
Platform means Bikky’s marketing automation and analytics platform.
Services means the products and services, including the Platform, made available by Bikky to Customer as may be mutually agreed to by the parties in an Order Form.
U.S. Privacy Law Addendum means the addendum attached hereto and incorporated herein as Exhibit A
2. Bikky Services.
2.1 Order Forms; Additional Terms. This Agreement will be implemented through one or more Order Forms. Any change to the terms of this Agreement within an Order Form will apply only to the Services described therein. Customer may enter into Order Forms on behalf of its Affiliates, provided that Customer shall remain responsible for all obligations under such Order Forms. Customer acknowledges that use of certain Services may be subject to additional policies, rules and/or conditions not expressly set forth herein (Additional Terms), including Additional Terms set forth in an applicable Order Form, all of which are incorporated herein by reference, and understands and agrees that by using or participating in any such Services, Customer agrees to also comply with these Additional Terms. Customer further acknowledges and agrees that Bikky may change the terms and conditions set forth in this Agreement at any time, and that Bikky may notify Customer of any such material changes on the Services or through some other means.
2.2 Services. Subject to all terms and conditions of this Agreement, Bikky will provide the Services described in an applicable Order Form. Bikky grants Customer a non-exclusive, non-transferable, non-sublicensable right and license to use and access the Platform solely for Customer’s internal business purposes in accordance with the Documentation for the applicable term of the Order Form. For clarity, the Services are provided on a software-as-a-service basis. Bikky may provide the Services directly, or indirectly using contractors or other third party vendors or service providers.
2.3 Access and Account Setup. Bikky will provide Customer with access privileges that permit Customer to access and manage its Platform account (Customer Account) and access, analyze and download Customer Data. Customer will identify an administrative user name and password that will be used to set up Customer’s account. Customer must provide accurate and complete information and keep the Customer Account information updated. Customer is solely responsible for the activity that occurs on the Customer Account, and for keeping the Customer Account password secure. Customer may never use another person’s user account or registration information for Bikky’s Services without permission. Customer must notify Bikky immediately of any change in Customer’s eligibility to use Bikky’s Services (including any changes to or revocation of any licenses from state authorities), and of any discovered or otherwise suspected breach of security or unauthorized use of the Customer Account. Customer shall be responsible for the acts or omissions of any person who accesses the Platform using passwords or access procedures provided to or created by Customer.
2.4 Modifications. Bikky reserves the right to modify or discontinue the Platform (in whole or in part) at any time by giving thirty (30) days’ prior written notice to Customer, provided that in the event such modification or discontinuance materially reduces the functionality of the Platform in accordance with this Agreement, Customer may terminate this Agreement upon at least thirty (30) days’ prior written notice to Bikky and receive a pro-rated refund of any pre-paid subscription fees. If Bikky provides Customer with any upgrades, patches, enhancements, or fixes for Bikky’s Services, then the items that are provided will become part of Bikky’s Services and subject to this Agreement. However, Bikky shall have no obligation under this Agreement to provide any upgrades, patches, enhancements, or fixes to Customer for Bikky’s Services.
2.5 Feedback. Customer may (but is not obligated to) provide suggestions, comments or other feedback to Bikky with respect to the Services (collectively, Feedback). Bikky acknowledges and agrees that all Feedback is provided “AS IS” and without warranty of any kind. Notwithstanding anything else, Customer shall, and hereby does, grant to Bikky a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose.
2.6 Cooperation. Customer acknowledges that the Services may require the reasonable cooperation of Customer personnel, as may be requested by Bikky from time to time. Without limiting the foregoing, where agreement, approval, acceptance, consent or similar action by Customer is required by any provision of this Agreement, such action shall not be unreasonably delayed or withheld, and Customer acknowledges that any delay or failure on the part of Customer to provide the same will relieve Bikky of its obligations under any Order Form for the pendency of such delay or failure.
3. Proprietary Rights.
3.1 Customer Data; Aggregated Data. Customer hereby grants to Bikky a worldwide, non-exclusive, royalty-free license to use, copy, access, process, reproduce, perform, display, modify, distribute and transmit the Customer Data for the purpose of providing the Services to Customer. Except for the limited rights and licenses expressly granted to Bikky under this Agreement, no other license is granted, no other use is permitted and Customer shall retain all rights, title and interests (including all intellectual property and proprietary rights) in and to the Customer Data. Notwithstanding anything to the contrary, Customer acknowledges and agrees that Bikky may (a) internally use and modify (but not disclose) Customer Data for the purposes of generating Aggregated Data (as defined below) and (b) freely use and make available Aggregated Data for Bikky’s business purposes (including without limitation, for purpose of improving, testing, operating, promoting and marketing the Platform and any of Bikky’s other Services). Aggregated Data means data submitted to, collected by, or generated by Bikky in connection with Customer’s use of the Services, provided that Bikky will use such data only in an aggregated, anonymized form that cannot specifically identify Customer.
3.2 Limited License. Except for the limited rights and licenses expressly granted to Customer hereunder, no other license is granted, no other use is permitted and Bikky (and its licensors) shall retain all rights, title and interests (including all intellectual property and proprietary rights) in and to the Services, including all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information that are used by Bikky in providing the Services, and all Bikky trademarks, names, logos, all rights to patent, copyright, trade secret and other proprietary or intellectual property rights. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and Customer (and its licensors) shall retain all rights, title and interest (including all intellectual property and proprietary rights) in and to Customer Data, which shall be deemed to be the Confidential Information (defined below) of Customer.
3.3 Restrictions. Except as expressly permitted in this Agreement, Customer shall not directly or indirectly (a) use any of Bikky’s Confidential Information to create any service, software, documentation or data that is similar to or competes with any aspect of the Services, (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code of the Services, or the underlying ideas, algorithms or trade secrets therein, (c) use the Documentation for any reason other than in connection with the Services, (d) encumber, sublicense, transfer, rent, lease, time-share or use the Services in any service bureau arrangement or otherwise for the benefit of any third party, (e) copy, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any aspect of the Services, (f) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction, (g) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws, or (h) permit any third party to engage in any of the foregoing proscribed acts.
3.4 California Consumer Privacy Act, as amended by the California Privacy Rights Act (CCPA)/Virginia Consumer Data Protection Act (VCDPA). Customer personal information or personal data (as such terms are defined in the U.S. Privacy Law Addendum) shall be processed in accordance with the U.S. Privacy Law Addendum..
4.1 Confidentiality Obligations. During the term of this Agreement, from time to time, either party may disclose (the Disclosing Party) or make available to the other party (the Receiving Party), whether orally, electronically or in physical form, confidential or proprietary information concerning the Disclosing Party and/or its business, products or services in connection with this Agreement (together, Confidential Information). Confidential Information of each party includes, without limitation, business plans, customer relationships, acquisition plans, systems architecture, information systems, computer programs and codes, processes, methods, operational procedures, finances, budgets, policies and procedures, product plans, projections, analyses, plans or results, the existence of any business dealings or agreements between Customer and Bikky, and any other information which is normally and reasonably considered confidential. Each party agrees that during the term of this Agreement and thereafter: (a) it will use Confidential Information belonging to the Disclosing Party solely for the purposes of this Agreement; and (b) it will not disclose Confidential Information belonging to the Disclosing Party to any third party (other than the Receiving Party’s employees, contractors and/or professional advisors on a need-to-know basis who are bound by obligations of nondisclosure and limited use at least as stringent as those contained herein) without first obtaining the Disclosing Party’s written consent. Upon request by the Disclosing Party, the Receiving Party will return all copies of any Confidential Information to the Disclosing Party.
4.2 Confidentiality Exclusions. For purposes hereof, Confidential Information will not include any information that the Receiving Party can establish by convincing written evidence: (a) was previously known by the Receiving Party; (b) was independently developed by the Receiving Party without use of or reference to any Confidential Information belonging to the Disclosing Party; (c) was acquired by the Receiving Party from a third party having the legal right to furnish same to the Receiving Party without use or disclosure restrictions; or (d) was at the time in question (whether at disclosure or thereafter) generally known by or available to the public (through no fault of the Receiving Party).
4.3 Required Disclosures. Nothing herein shall prevent a Receiving Party from disclosing any Confidential Information as necessary pursuant to any court order, lawful requirement of a governmental agency or when disclosure is required by operation of law (including disclosures pursuant to any applicable securities laws and regulations); provided that prior to any such disclosure, the Receiving Party shall use reasonable efforts to (a) promptly notify the Disclosing Party in writing of such requirement to disclose and (b) cooperate with the Disclosing Party, at the Disclosing Party’s sole cost and expense, in protecting against or minimizing any such disclosure or obtaining a protective order.
4.4 Injunctive Relief. The parties acknowledge and agree that the disclosure of Confidential Information may result in irreparable harm for which there is no adequate remedy at law. The parties therefore agree that the Disclosing Party may be entitled to an injunction in the event the Receiving Party violates or threatens to violate the provisions of this Section 4, and that no bond will be required. This remedy will be in addition to any other remedy available at law or equity.
5.1 Fees. Customer agrees to pay Bikky all fees and expenses in the amounts and at the times specified in the applicable Order Form (the Fees).
5.2 Taxes. Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, Taxes). Customer is responsible for paying all Taxes associated with the Services under this Agreement and all Order Forms, excluding Taxes based solely on Bikky’s net income. If Bikky is deemed to have the legal obligation to pay or collect Taxes for which Customer is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Bikky with a valid tax exemption certificate authorized by the appropriate taxing authority.
5.3 Payment Terms. Unless specified otherwise or subject to a good faith dispute, and except as may be otherwise set forth in an Order Form, all amounts due hereunder shall be paid in full (without deduction, set-off or counterclaim) within thirty (30) days after Customer’s receipt of invoice in US dollars at Bikky’s address or to an account specified by Bikky. If Customer fails to make payment by the due date, Bikky may, in addition to its other rights and remedies, charge a late payment charge of one and a half percent (1.5%) per month, to cover costs of collections as well as interest, or, if lower, the maximum rate allowed by law. Furthermore, upon written notice to Customer, Bikky may elect to suspend its performance under this Agreement and/or any Order Form until payment is received.
5.4 Expenses. Where indicated on an applicable Order Form, Customer agrees to pay all of Bikky’s out of pocket costs and expenses incurred by Bikky in the performance of its obligations under this Agreement including, without limitation, amounts incurred for air fare, travel, automobile rental, accommodations and an employee per diem.
6. Warranties and Disclaimers.
6.1 General. Each party represents and warrants that: (a) it is a duly organized and validly existing under the laws of the jurisdiction in which it is organized; (b) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into this Agreement, to perform its obligations and to grant the rights hereunder; (c) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (d) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
6.2 Customer Warranties. Customer represents and warrants to Bikky that (a) Customer owns all rights, title and interest in and to the Customer Data, or that Customer has otherwise secured all necessary rights in the Customer Data for Bikky to perform the Services, and (b) Customer and all users granted access to the Platform or Services under this Agreement will not use the Services in violation of any laws, including but not limited to Canada’s Anti-Spam Legislation, S.C. 2010, c. 23, the “CAN-SPAM” Act of 2003, 15 U.S.C. §§ 7701-7713, and any similar laws of any applicable jurisdiction regarding marketing or unsolicited messaging.
6.3 Bikky Warranties. Bikky warrants that the Services will operate materially in accordance with the Documentation during the term of the applicable Order Form. In the event that the Services fail to satisfy this warranty, Bikky will, at its own expense, as Customer’s sole and exclusive remedy, either: (i) promptly replace the Services with a solution that materially conforms to the Documentation; or (ii) promptly repair the Services so that they materially conform to the Documentation.
6.4 Disclaimers. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” BIKKY DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR RESULT IN ANY OUTCOME, OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED BY LAW, BIKKY HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
7.1 Bikky Indemnity. Except as provided below, Bikky agrees to (a) defend Customer against any claim by a third party that the Platform infringes a valid US patent (issued as of the Order Effective Date), or any copyright or trade secret, of such third party and (b) indemnify Customer for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded and arising out of such claim. If the Platform becomes or, in Bikky’s opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, Bikky may, at its option (i) obtain for Customer the right to continue using the Platform or (ii) replace or modify the infringing portions of the Platform so that it becomes non-infringing without substantially compromising its principal functions. If (i) and (ii) are not reasonably available to Bikky, then it may (iii) terminate this Agreement upon written notice to Customer and refund to Customer any Fees that were pre-paid for the then-current term, pro-rated for the remainder thereof. The foregoing states the entire liability of Bikky, and Customer’s exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the Platform, any part thereof or its use or operation.
7.2 Exclusions. Bikky shall have no liability or obligation hereunder with respect to any claim based upon (a) any use of the Services not strictly in accordance with this Agreement or in an application or environment for which it was not designed or contemplated, (b) any Customer Data, (c) modifications, alterations, combinations or enhancements not created by or for Bikky, (d) any portion of the Services that implements Customer’s requirements, (e) Customer’s continuing allegedly infringing activity after being notified thereof or its continuing use of any version after being provided modifications that would have avoided the alleged infringement or (f) any intellectual property right in which Customer or any of its Affiliates has an interest.
7.3 Customer Indemnity. Customer shall defend Bikky, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives (collectively, the Bikky Indemnitees) against any claim by a third party that is related to (i) Bikky’s authorized use of any Customer Data, (ii) Customer’s breach of any express representation or warranty made hereunder or any breach of Section 3.4 or (iii) claims excluded under Section 7.2, and to indemnify Bikky for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded and arising out of such claims.
7.4 Procedures. Any claim for indemnification hereunder requires that (a) the indemnified party provides prompt written notice of the claim and reasonable cooperation, information, and assistance in connection therewith, and (b) the indemnifying party shall have sole control and authority to defend, settle or compromise such claim. The indemnifying party shall not make any settlement that requires a materially adverse act or admission by the indemnified party without the indemnified party’s written consent (such consent not to be unreasonably delayed, conditioned or withheld). The indemnifying party shall not be liable for any settlement made without its prior written consent.
8. Limitation of Liability. EXCEPT FOR ANY INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 7 OR ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL BIKKY BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL OR (C) DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID TO IT HEREUNDER DURING THE PREVIOUS 12 MONTHS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. Term and Termination.
9.1 Term of Agreement. This Agreement shall commence on the Effective Date and, unless earlier terminated as provided herein or in an applicable Order Form, shall continue for the period of time stated in the applicable Order Form. If the applicable Order Form does not set forth a term, then this Agreement shall commence on the Effective Date and, unless earlier terminated as provided herein or in an applicable Order Form, continue for one (1) year from the Effective Date, which term shall automatically renew for successive terms of one (1) year each, unless Customer notifies Bikky of its intent not to renew this Agreement at least sixty (60) days prior to the end of the applicable term.
9.2 Termination. This Agreement may be earlier terminated by either party (a) if the other party materially breaches a provision of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of such breach from the non-breaching party, or (b) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within 90 days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course. Termination of this Agreement shall terminate all outstanding Order Forms.
9.3 Effects of Termination. Upon any expiration or termination of any Order Form or this Agreement, all corresponding rights, obligations and licenses of the parties shall cease, except that (a) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) shall survive; (b) Customer shall cease using the Services (if Customer continues to use the Services, then Bikky reserves the right to continue to charge Customer); and (d) the provisions of Sections 2.6 (Feedback), 3 (Proprietary Rights), 4 (Confidentiality), 5 (Payments), 6.4 (Disclaimers), 7 (Indemnification), 8 (Limitation of Liability), 10 (General Provisions) and this Section 9.2 shall survive.
10. General Provisions.
10.1 Entire Agreement. This Agreement (including the Order Forms) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties regarding the subject matter of this Agreement (and all past dealing or industry custom). Any inconsistent or additional terms on any related purchase order, confirmation or similar form, even if signed by the parties hereafter, shall have no effect under this Agreement. In the event of any conflict between the terms of this Agreement and the terms of any Order Form, the terms of the Order Form shall control. This Agreement supersedes any vendor forms, order forms, invoices, policies, or other terms and conditions provided by Customer. This Agreement may be executed in one or more counterparts, each of which shall be an original, but taken together constituting one and the same instrument. Execution of a facsimile/electronic copy shall have the same force and effect as execution of an original, and a facsimile/ electronic signature shall be deemed an original and valid signature. No change, consent or waiver under this Agreement will be effective unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is in English only, which language shall be controlling in all respects.
10.2 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, USA, without regard to its conflicts of law provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Unless waived by Bikky in its sole discretion, exclusive jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in New York having jurisdiction over Bikky’s offices, and both parties consent to the jurisdiction of such courts with respect to any such action. In any action or proceeding to enforce this Agreement, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys’ fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.
10.3 Remedies. Except as specifically provided otherwise herein, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 3 or 4, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
10.4 Notices. All notices under this Agreement will be in writing, in English and delivered to the parties at their respective addresses stated herein or at such other address designated by written notice. Notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile; the day after being sent, if sent for next day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested.
10.5 Force Majeure. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (except payment obligations) due to any cause beyond its reasonable control including, without in any way limiting the generality of the foregoing, fire, explosion, earthquake, storm, flood, strike, war, insurrection, riot, act of God or the public enemy, failures in any telecommunications, network or other service or equipment that are not within a party’s reasonable control, unauthorized access, breach of firewalls or other hacking by third parties, instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such party of this Agreement), the affected party’s performance shall be excused or extended for the period of delay or inability to perform due to such occurrence.
10.6 Publicity. Customer hereby grants Bikky a limited, non-transferable (except to the extent this Agreement is transferred by Bikky in accordance with Section 11.7), non-exclusive license to include Customer’s name and standard logo within lists of customers utilizing Bikky’s services, both on Bikky’s public-facing website and in marketing and promotional materials.
10.7 Assignment. This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party’s written consent, not to be unreasonably withheld. However, without consent, Bikky may assign this Agreement to (a) an Affiliate or (b) any successor to all or substantially all of its business that concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise). This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of each party hereto.
10.8 Third Party Beneficiaries. This Agreement is entered into solely between, and may be enforced only by, Customer and Bikky. This Agreement will not be deemed to create any rights in third parties or to create any obligations of a party to any third parties.
10.9 Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
Welcome to Bikky. Please read on to learn the rules and restrictions that govern your use of our website and related domains (collectively, the “Website”). If you have any questions, comments, or concerns regarding these terms or the Website, please contact us at:
Address: 221 Canal Street, Floor 6, New York, NY 10013
. Your use of or participation in certain products, services and applications offered by Bikky (individually and collectively, “Services”) will be subject to additional policies, rules and/or conditions (“Additional Terms”), and you understand and agree that by using or participating in any such Services, you agree to also comply with these Additional Terms.
Please read these Terms carefully.
They cover important information about Website provided to you and any charges, taxes, and fees we bill you. These Terms include information about future changes to these Terms, automatic renewals, limitations of liability, a class action waiver and resolution of disputes by arbitration instead of in court. PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR WEBSITE ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE WEBSITE IN ANY MANNER.
ARBITRATION NOTICE AND CLASS ACTION WAIVER:
EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AGREEMENT SECTION BELOW
, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
Will these Terms ever change?
We are constantly trying to improve our Website, so these Terms may need to change along with our Website. We reserve the right to change the Terms at any time, but if we do, we will place a notice on our site located at bikky.com, send you an email, and/or notify you by some other means.
If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Website. If you use the Website in any way after a change to the Terms is effective, that means you agree to all of the changes.
Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.
What about my privacy?
Children’s Online Privacy Protection Act
The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13 years of age. We do not knowingly collect or solicit personally identifiable information from children under 13 years of age; if you are a child under 13 years of age, please do not attempt to register for or otherwise use the Website or send us any personal information. If we learn we have collected personal information from a child under 13 years of age, we will delete that information as quickly as possible. If you believe that a child under 13 years of age may have provided us personal information, please contact us at firstname.lastname@example.org.
What are the basics of the Website?
You represent and warrant that you are an individual of legal age to form a binding contract (or if not, you’ve received your parent’s or guardian’s permission to use the Website and have gotten your parent or guardian to agree to these Terms on your behalf).
You will only use the Website for your own internal, personal, non-commercial use, and not on behalf of or for the benefit of any third party, and only in a manner that complies with all laws that apply to you. If your use of the Website is prohibited by applicable laws, then you aren’t authorized to use the Website. We can’t and won’t be responsible for your using the Website in a way that breaks the law.
You may be required to sign up for an account, select a password and user name (“User ID”), and provide us with certain information or data, such as your contact information. You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your User ID a name that you do not have the right to use, or another person’s name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission. You will not share your User ID, account or password with anyone, and you must protect the security of your User ID, account, password and any other access tools or credentials. You’re responsible for any activity associated with your User ID and account.
What about messaging?
As part of the Website, you may receive communications through the Website, including messages that Bikky sends you (for example, via email or SMS).
Are there restrictions in how I can use the Website?
You represent, warrant, and agree that you will not provide or contribute anything, including any Content (as that term is defined below), to the Website, or otherwise use or interact with the Website, in a manner that:
(a) infringes or violates the intellectual property rights or any other rights of anyone else (including Bikky);
(b) violates any law or regulation, including, without limitation, any applicable export control laws, privacy laws or any other purpose not reasonably intended by Bikky;
(c) is dangerous, harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
(d) jeopardizes the security of your User ID, account or anyone else’s (such as allowing someone else to log in to the Services as you, or attempts, in any manner, to obtain the password, account, or other security information from any other user;
(e) violates the security of any computer network, or cracks any passwords or security encryption codes;
(f) runs Maillist, Listserv, any form of auto-responder or “spam” on the Website, or any processes that run or are activated while you are not logged into the Website, or that otherwise interfere with the proper working of the Website (including by placing an unreasonable load on the Website’ infrastructure);
(g) “crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Website or Content (through use of manual or automated means);
(h) copies or stores any significant portion of the Content; or
(i) decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Website.
A violation of any of the foregoing is grounds for termination of your right to use or access the Website.
What are my rights in the Website?
The materials displayed or performed or available on or through the Website, including, but not limited to, text, graphics, data, articles, photos, images, illustrations and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Website, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, commercialize or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including Bikky's) rights.
Subject to these Terms, we grant each user of the Website a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Website. Use, reproduction, modification, distribution or storage of any Content for any purpose other than using the Website is expressly prohibited without prior written permission from us. You understand that Bikky owns the Website. You won’t modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Website. The Website may allow you to copy or download certain Content, but please remember that even where these functionalities exist, all the restrictions in this section still apply.
Who is responsible for what I see and do on the Website?
Any information or Content publicly posted or privately transmitted through the Website is the sole responsibility of the person from whom such Content originated, and you access all such information and Content at your own risk, and we aren’t liable for any errors or omissions in that information or Content or for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Website. We can’t guarantee the identity of any users with whom you interact in using the Website and are not responsible for which users gain access to the Website.
You are responsible for all Content you contribute, in any manner, to the Website, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it.
The Website may contain links or connections to third-party websites or Website that are not owned or controlled by Bikky. When you access third-party websites or use third-party Website, you accept that there are risks in doing so, and that Bikky is not responsible for such risks.
Your interactions with organizations and/or individuals found on or through the Website, including payment and delivery of goods or Website, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that Bikky shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
If there is a dispute between participants on this site or Website, or between users and any third party, you agree that Bikky is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release Bikky, its directors, officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Website. You shall and hereby do waive California Civil Code Section 1542 or any similar law of any jurisdiction, which says in substance: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
Will Bikky ever change the Website?
We’re always trying to improve our Website, so they may change over time. We may suspend or discontinue any part of the Website, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Website. We reserve the right to remove any Content from the Website at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole discretion, and without notice.
What if I want to stop using the Website?
, as well as the licenses above, to understand how we treat information you provide to us after you have stopped using our Website.
Bikky is also free to terminate (or suspend access to) your use of the Website for any reason in our discretion, including your breach of these Terms. Bikky has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us, including without limitation the arbitration agreement.
What else do I need to know?
Bikky and its licensors, suppliers, partners, parent, subsidiaries or affiliated entities, and each of their respective officers, directors, members, employees, consultants, contract employees, representatives and agents, and each of their respective successors and assigns (Bikky and all such parties together, the “Bikky Parties”) make no representations or warranties concerning the Website, including without limitation regarding any Content contained in or accessed through the Website, and the Bikky Parties will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Website or any claims, actions, suits procedures, costs, expenses, damages or liabilities arising out of use of, or in any way related to your participation in, the Website. The Bikky Parties make no representations or warranties regarding suggestions or recommendations of Website or products offered or purchased through or in connection with the Website. THE WEBSITE AND CONTENT ARE PROVIDED BY BIKKY (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability
. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL ANY OF THE BIKKY PARTIES BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, (B) ANY SUBSTITUTE GOODS, WEBSITE OR TECHNOLOGY, (C) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) ONE-HUNDRED ($100) DOLLARS OR (II) THE AMOUNTS PAID AND/OR PAYABLE BY YOU TO BIKKY IN CONNECTION WITH THE WEBSITE IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM OR (D) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL OR CERTAIN OTHER DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
. You agree to indemnify and hold the Bikky Parties harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any claims relating to (a) your use of the Website, and (b) your violation of these Terms. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for you (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder in any way (by operation of law or otherwise) without Bikky's prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
Choice of Law
. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of New York, without regard to the conflicts of laws provisions thereof.
Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with Bikky and limits the manner in which you can seek relief from Bikky. Both you and Bikky acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, Bikky's officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
(a) Arbitration Rules; Applicability of Arbitration Agreement
. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of these Terms directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in New York, New York. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
(b) Costs of Arbitration
. The Rules will govern payment of all arbitration fees. Bikky will pay all arbitration fees for claims less than seventy-five thousand ($75,000) dollars. Bikky will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
(c) Small Claims Court; Infringement
. Either you or Bikky may assert claims, if they qualify, in small claims court in New York, New York or any United States county where you live or work. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
(d) Waiver of Jury Trial
. YOU AND BIKKY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and Bikky are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Bikky over whether to vacate or enforce an arbitration award, YOU AND BIKKY WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
(e) Waiver of Class or Consolidated Actions
. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Bikky is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.
. You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to the following address: 221 Canal Street, Floor 6, New York, NY 10013 postmarked within thirty (30) days of first accepting these Terms. You must include (i) your name and residence address, (ii) the email address and/or telephone number associated with you, and (iii) a clear statement that you want to opt out of these Terms’ arbitration agreement.
(g) Exclusive Venue
. If you send the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration agreement permits either you or Bikky to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party, and both you and Bikky agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, New York, New York, or the federal district in which that county falls.
. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement section will be null and void. This arbitration agreement will survive the termination of your relationship with Bikky.
. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Website, provided that the Bikky may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms are found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Bikky agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Bikky, and that these Terms supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Bikky, and you do not have any authority of any kind to bind Bikky in any respect whatsoever.
Except as expressly set forth in the section above regarding the arbitration agreement, you and Bikky agree there are no third-party beneficiaries intended under these Terms.