Terms of Service for ReferralVoodoo™ Cloud Messaging Services – SRL Group

These Terms of Service constitute an agreement (this “Agreement”) for the provision of ReferralVoodoo-brand Cloud Messaging Services by Big Magic Inc., a Delaware corporation (“SRL Group,” “Us,” or “Big Magic”) and any person or entity opening an online account with Big Magic (“You,” or “Customer”) as specified in the information provided by Customer to Big Magic in the online registration form. This Agreement is effective as of the date Customer clicks “Accepted and Agreed To” or a similar approval / digital signature on an insertion order from Big Magic (the “Effective Date”). Customer’s use of and Big Magic’s provision of the Cloud Services and Big Magic System (each as defined below) are governed by this Agreement.

DEFINITIONS. The following capitalized terms shall have the following meanings whenever used in this Agreement.
1. “Ambassador” means an individual person or business entity that has agreed to refer new customers to your business and are thus recognized and/or rewarded by you, subject to the limitations of this agreement and applicable local and/or professional regulations.
2. “Ambassador Performance” means the interactions reported by the software, from which you determine an appropriate recognition or reward.
3. “Aggregate Data” has the meaning ascribed to it in Section 4.7 hereof.
4. “Cloud Services” means such software as a service (“SAAS”) and related services as Big Magic may provide from time to time to its Customers with respect to one or more Ambassadors via the System, including calls, appointment requests, “leads”, or other interactions that tracked or reported by the system.
5. “Confidential Information” has the meaning ascribed to it in Section 7.
6. “Customer Data” means data in electronic form input or collected through the System by or from Customer, including without limitation by Customer’s Users.
7. “Customer Order” means an order for access to the System on a subscription basis entered by Customer through Big Magic’s online registration process on the Website and acknowledged by such Customer through a click-to-agree online process.
8. “Customization Fees” has the meaning ascribed to it in Section 3.1 hereof.
9. “Customization Services” means certain customized services, other than Cloud Services, provided by Big Magic to Customer pursuant to the Customization Services Addendum.
10. “Customization Services Addendum” means the optional agreement governing the provision of Customization Services to Customer.
11. “Documentation” means Big Magic’s standard manual related to use of the System, as well as any additional documentation provided to Customer in connection with this Agreement.
12. “Excluded Data” has the meaning ascribed to it in Section 4.6 hereof.
13. “Feedback” has the meaning ascribed to it in Section 6.2 hereof.
14. “Merchant” means an e-commerce entity paying a commission, referral fee or similar compensation to an Ambassador for qualified sales, leads, clicks, or other measurable action by a visitor generated or referred to by such Ambassador to the Merchant’s website.
15. “Privacy Policy” means Big Magic’s privacy policy, currently posted at https://referralvoodoo.com/privacy.
16. “Statement of Work” means the statement of work executed by Customer and Big Magic pursuant to the Customization Services Addendum.
17. “Subscription Fees” has the meaning ascribed to it in Section 3.1 thereof.
18. “System” means Big Magic’s proprietary online platform designed for building and sharing software, SaaS and mobile application integrations for the Cloud Services, using the visual workflow editor or any major programming language.
19. “Term” is defined in Section 11.1 below.
20. “User” means any individual who uses the System on Customer’s behalf or through Customer’s account or passwords, whether authorized or not.
21. “Website” means the website and subdomains owned and operated by Big Magic at ReferralVoodoo.com.
THE SYSTEM. The following capitalized terms shall have the following meanings whenever used in this Agreement.
1. Use of the System. During the Term and provided that this Agreement has not been terminated by either party, and in consideration of the payment of the Subscription Fees, Customer may access the System for the purpose of using Cloud Services pursuant and subject to: (a) the terms of any outstanding Customer Order, including such features and functions as the Customer Order provides and any limitations on the number of Users, data volume and capacity as the Customer Order imposes; (b) Big Magic’s other policies posted on its Website at www.referralvoodoo.com, as such policies may be updated from time to time; (c) industry-specific terms and conditions, as defined in Appendix A, if applicable.
2. Documentation. Customer may reproduce and use the Documentation solely as necessary to support Users’ use of the System.
3. System Revisions. Big Magic may revise System and Cloud Services features and functions at any time, including without limitation by removing such features and functions. If any such revision to the System or Cloud Services materially reduces features or functionality provided pursuant to a Customer Order, Customer may within 30 days of notice of the revision terminate such Customer Order, without cause, or terminate this Agreement without cause if such Customer Order is the only one outstanding.
FEES.
1. ALL FEES AND CHARGES ARE NONREFUNDABLE. Customer shall pay Big Magic the fees for the access to the System and use of the Cloud Services (“Subscription Fees”) in accordance with the schedule of Subscription Fees which are specified in the Customer Order, and the fees for optional Customization Services (“Customization Fees”), if applicable, as specified in the Statement of Work executed by Customer and Big Magic under the optional Customization Services Addendum (Subscription Fees and Customization Fees together, the “Fees”) during each Term. Subscription Fees are dependent on the length of the Term, number of Users, Ambassadors or Ambassador interactions or events (“Ambassador Performance”), data volume and such other capacity limitations as may be stated in the schedule of Subscription Fees on the Website or in the Insertion Order Form, if applicable.
2. Payment of Fees. Customer authorizes Big Magic to charge an amount equal to the amount of the Subscription Fees as provided in Section 3.1 hereof on a monthly basis (unless the relevant Customer Order provides otherwise) and, if the Customization Services Addendum is elected, the amount of Customization Fees (on such dates as the Statement of Work provides), and any additional amounts as permitted by this Agreement, to the credit card and/or bank account specified in the Customer Order in advance of provision of services to the Customer by means of automatic debit or credit card charge for the duration of each Term. Customer hereby agrees to keep such valid credit card and/or bank account in effect with sufficient credit limit to enable Big Magic to charge the Fees every month, quarter or other period of each Term, as applicable. Customer permanently and irrevocably waives any and all right to enact a ‘chargeback’ (that is, a disputed, reversed or contested charge with the applicable bank, credit card, charge card or other payment method) against these payments for any reason whatsoever against Big Magic, Inc. If for any reason Big Magic Inc. is unable to charge your Account or other payment method for the full amount owed for the Services provided, or if Big Magic Inc. receives notification of a chargeback, reversal, payment dispute or is charged a penalty for any fee it previously charged to your Account or other payment method, you agree that we may pursue all available lawful remedies in order to obtain payment, including, but not limited to, immediate cancellation, without notice to you, of any your Services (including domain names). Big Magic will not be required to refund the Fees under any circumstances.
3. Taxes. All Fees are exclusive of, and the Customer is responsible for, applicable federal or national, state or provincial, or local sales, use, excise, export or other applicable taxes, except for taxes on the net income of Big Magic. Big Magic may add any such taxes to the applicable Fees.
Customer Data & Privacy.
1. Use of Customer Data. Unless it receives Customer’s prior written consent, Big Magic: (a) shall not access, process, or otherwise use Customer Data other than as necessary to operate and facilitate the System, to provide Cloud Services to Customer and to improve customer experience on the System; and (b) shall not intentionally grant any third party access to Customer Data, including without limitation Big Magic’s other customers, except subcontractors that are subject to a reasonable nondisclosure agreement or confidentiality duties. Notwithstanding the foregoing, Big Magic may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Big Magic shall give Customer prompt notice, if permitted by applicable law, of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.
2. Privacy Policy. The Privacy Policy applies only to the System and does not apply to any third party website or service linked to the System or recommended or referred to through the System or by Big Magic’s staff, including without limitation, Merchant’s websites or Ambassador’s websites.
3. Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the System, Customer assumes such risks. BIG MAGIC OFFERS NO REPRESENTATION, WARRANTY, OR GUARANTEE THAT CUSTOMER DATA WILL NOT BE EXPOSED OR DISCLOSED THROUGH ERRORS OR THE ACTIONS OF THIRD PARTIES.
4. Data Accuracy. BIG MAGIC SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR THE ACCURACY OF DATA UPLOADED TO THE SYSTEM BY CUSTOMER, INCLUDING WITHOUT LIMITATION CUSTOMER DATA AND ANY OTHER DATA UPLOADED BY USERS. In addition, Big Magic shall not be responsible or liable for any Ambassador commission payment calculation errors in connection with PayPal or other online payments made in reliance on the reports generated from the use of the System or of any application programming interface keys generated by the System.
5. Data Deletion. Big Magic may permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated for 30 days or more.
6. Excluded Data. Customer represents and warrants that Customer Data does not and will not include, and Customer has not and shall not upload or transmit to Big Magic’s computers, servers, network or other media, any data that is subject to heightened security requirements as a result of Customer’s internal policies or practices or by law or regulation (examples include but are not limited to the Health Insurance Portability and Accountability Act (HIPAA), the Gramm–Leach–Bliley Act (GLBA), Family Educational Rights and Privacy Act (FERPA), etc. (the “Excluded Data Laws”))(such Customer Data collectively, “Excluded Data”). CUSTOMER RECOGNIZES AND AGREES THAT: (a) BIG MAGIC HAS NO LIABILITY FOR ANY FAILURE TO PROVIDE PROTECTIONS SET FORTH IN THE EXCLUDED DATA LAWS OR OTHERWISE TO PROTECT EXCLUDED DATA; AND (b) BIG MAGIC’S SYSTEMS, INCLUDING THE SYSTEM, ARE NOT INTENDED FOR MANAGEMENT OR PROTECTION OF EXCLUDED DATA AND MAY NOT PROVIDE ADEQUATE OR LEGALLY REQUIRED SECURITY FOR EXCLUDED DATA.
7. Aggregate and Anonymized Data. Notwithstanding the provisions above of this Article 4, Big Magic may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion. “Aggregate Data” refers to Customer Data with the following removed: personally identifiable information and the names and addresses of Customer and any of its Users, Ambassadors, end users or customers.
CUSTOMER’S RESPONSIBILITIES AND RESTRICTIONS.
1. Acceptable Use. Customer shall not: (a) use the System for service bureau or time-sharing purposes or in any other way allow third parties, including Customer’s Ambassadors, to exploit the System; (b) provide System passwords or other log-in information to any third party; (c) share non-public System features or content with any third party; (d) access the System in order to build a competitive product or service to build a product using similar ideas, features, functions or graphics of the System, or to copy any ideas, features, functions or graphics of the System, or (e) use the program in any way that violates the market-specific terms and conditions Addendum, if applicable. In the event that it suspects any breach of the requirements of this Section 5.1, including without limitation by Users, Big Magic may suspend Customer’s access to the System without advanced notice, in addition to such other remedies as Big Magic may have. This Agreement does not require that Big Magic take any action against Customer or any User or other third party for violating this Section 5.1 or this Agreement, but Big Magic is free to take any such action it sees fit. In addition, Customer shall comply with all restrictions imposed by each merchant in connection with Ambassador transactions.
2. Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access to the System, including without limitation by protecting its passwords and other log-in information. Customer shall notify Big Magic immediately of any known or suspected unauthorized use of the System or breach of its security and shall use best efforts to stop said breach.
3. Compliance with Laws and Professional Regulations. In its use of the System, Customer shall comply with all applicable laws and regulations, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Customer Data, or compensation in any form to 3rd parties.
4. Users & System Access. Customer is responsible and liable for: (a) Users’ use of the System, including without limitation unauthorized User conduct and any User conduct that would violate the requirements of this Agreement applicable to Customer; and (b) any use of the System through Customer’s account, whether authorized or unauthorized.
IP AND FEEDBACK.
1. IP (Intellectual Property) Rights to the System. Big Magic retains all right, title, and interest in and to the System, including without limitation all software, system software and applications used to provide the System, including any source code, updates, improvements, enhancements, modifications or derivative works thereof, whether or not patentable, and all inventions, content, graphics, media, user interfaces, logos, and trademarks contained in, displayed, performed or reproduced through the System.. This Agreement is an agreement for services and does not grant the Customer any intellectual property license or rights in or to the System or any of its components. Customer understands and agrees that the System and its components are protected by copyright and other laws.
2. Feedback. Big Magic has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Customer or Users provide to Big Magic, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Big Magic’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the User in question. (“Feedback” refers to any suggestions or ideas for improving or otherwise modifying any of Big Magic’s products or services.)
3. Limited License. Notwithstanding anything to the contrary contained herein, Customer hereby grants to Big Magic a limited royalty-free license and the right during the Term to disclose, use, modify, edit, create derivative works, reproduce and display for Big Magic’s training, marketing, advertising, publicity and other business purposes Customer’s information, data and content associated with Customer’s Big Magic account and registration page, including without limitation, Customer’s Ambassador program terms and other text and graphic elements supplied by Customer, provided however that Big Magic will remove specifically identifiable information, such as individual names, office addresses, email addresses and order numbers, therefrom prior to sharing such Customer’s information, data and content with third parties.
Confidential Information. “Confidential Information” refers to the following items Big Magic discloses to Customer: (a) any document Big Magic marks “Confidential”; (b) any information Big Magic orally designates as “Confidential” at the time of disclosure, provided Big Magic confirms such designation in writing within seven (7) business days; (c) the Documentation, this Agreement, Customer Order, the Customization Services Addendum, Statements of Work and any communications between Big Magic and Customer in relation to this Agreement or the Customization Services Addendum, whether or not marked or designated confidential; and (d) any other nonpublic, sensitive information disclosed by Big Magic, whether or not marked or designated “Confidential.” Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Customer’s possession at the time of disclosure; (ii) is independently developed by Customer without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Customer’s improper action or inaction; or (iv) is approved for release in writing by Customer.
Nondisclosure.
1. Customer shall not use Confidential Information for any purpose other than the use of the System for its ordinary internal business purposes (the “Purpose”). Customer: (a) shall not disclose Confidential Information to any employee or contractor of Customer unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Customer with terms no less restrictive than those of this Article 7; and (b) shall not disclose Confidential Information to any other third party without Big Magic’s prior written consent. Without limiting the generality of the foregoing, Customer shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of a similar nature and importance, but with no less than reasonable care. Customer shall promptly notify Big Magic of any misuse or misappropriation of Confidential Information that comes to Customer’s attention. Notwithstanding the foregoing, Customer may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Customer shall give Big Magic prompt notice of any such legal or governmental demand and reasonably cooperate with Big Magic in any effort to seek a protective order or otherwise to contest such required disclosure, at Big Magic’s expense.
2. Injunction. Customer agrees that breach of this Article 7 would cause Big Magic irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Big Magic will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
3. Termination & Return. With respect to each item of Confidential Information, the obligations of Section 7.1 above (Nondisclosure) will terminate five (5) years after the date of disclosure. Upon termination of this Agreement, Customer shall return all copies of Confidential Information to Big Magic or certify, in writing, the destruction thereof.
4. Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Big Magic will retain all right, title, and interest in and to all Confidential Information.
Representations & Warranties.
1. THESE CLOUD BASED SERVICES ARE NOT A LEAD GENERATION OR REFERRAL SERVICE. THE SERVICES MAY ASSIST THE CUSTOMER TO ACTIVATE WORD-OF-MOUTH REFERRALS, BUT THE COMPANY CAN NOT AND DOES NOT GUARANTEE YOU WILL RECEIVE ANY NEW BUSINESS FROM THE USE OF THESE SERVICES. FURTHER, THE COMPANY DOES NOT GUARANTEE THAT ANY LEAD FROM THIS SERVICE WILL BECOME A CLIENT OR NEED THE SERVICES THEY SOUGHT.
2. From Big Magic: Big Magic represents and warrants that it is the owner of the System and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights granted in this Agreement without the further consent of any third party. Big Magic’s representations and warranties in the preceding sentence do not apply to use of the System in combination with hardware or software not provided by Big Magic. In the event of a breach of the warranty in this Section 8.1, Big Magic, at its own option and expense, will promptly take the following actions: (a) secure for Customer the right to continue using the System; (b) replace or modify the System to make it non-infringing; or (c) terminate the infringing features of the Cloud Services and refund to Customer any prepaid fees for such features, in proportion to the portion of the Term left after such termination. In conjunction with Customer’s right to terminate for breach where applicable, the preceding sentence states Big Magic’s sole obligation and liability, and Customer’s sole remedy, for breach of the warranty in this Section 8.1 and for potential or actual intellectual property infringement by the System.
3. From Customer: Customer represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the System; (c) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law; and (d) it, as a Merchant, has entered into a valid and enforceable agreement with one or more Ambassadors with respect to which it intends to use the System and the Cloud Services.
4. Warranty Disclaimers. Except as provided in Section 8.1 above, CUSTOMER ACCEPTS THE SYSTEM AND CLOUD SERVICES “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) Big Magic HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) Big Magic DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) Big Magic DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.
Prohibited Activity
1. You are only entitled to use the ReferralVoodoo Website and Services for lawful purposes and in accordance with these Terms of Use, the Privacy Policy, and any other applicable contracts, laws, or regulations. SPECIFICALLY, IF FEDERAL, STATE OR LOCAL LAWS, OR PROFESSIONAL STANDARDS AND PRACTICES REGULATE ANY FORM OF FINANCIAL OR IN-KIND COMPENSATION TO REFERRAL PARTNERS, YOU ARE EXPRESSLY FORBIDDEN TO USE OUR SOFTWARE FOR THIS PURPOSE. In the event there is any inconsistency between these Terms of Use and the terms of another applicable contract, that contract will supersede the Terms of Use.
2. Except as expressly provided in these Terms of Use, you agree to not, and to not allow any third party to:
  1. Access or attempt to access the Technology by any means other than through the ReferralVoodoo user interface;
  2. Attempt to circumvent or overcome any protection measures intended to restrict access to any portion of the ReferralVoodoo Website or Technology;
  3. Monitor the availability, performance, or functionality of the Technology;
  4. Use the Technology for the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise;
  5. Use the Technology in any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries, including the U.S. Foreign Corrupt Trade Practices Act, and the U.S. Export Administration Act), or (except with our consent) in any manner that could damage, disable, overburden, or impair it;
  6. Use the Technology to transmit, or procure the sending of, any advertising or promotional material without our prior written consent, including any “junk mail”, “chain letter” or “spam” or any other similar solicitation;
  7. Use the Technology to impersonate or attempt to impersonate ReferralVoodoo, a ReferralVoodoo employee, another user or any other person or entity (including, without limitation, by using e-mail addresses or screen names associated with any of the foregoing);
  8. Use the Technology to engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Website, or which, as determined by us, may harm ReferralVoodoo or users of the Website or expose them to liability;
  9. Interfere with the operation or hosting of the ReferralVoodoo Website, including but not limited to violating or attempting to violate any security feature, place malware or similar harmful code into the Website, or link to websites or other applications that contain malware or similar harmful code;
  10. Overload, overwhelm, or carry out a denial-of-service attack on, or otherwise prohibit the proper function of, the ReferralVoodoo Website;
  11. Interfering or attempting to interfere with service to any user, host, or network, including, without limitation, submitting to the Website a virus, Trojan horse, or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, overloading the Website, or “flooding,” “spamming,” “mail bombing,” or “crashing” the Website;
  12. Introduce software, automated agents, or scripts to the ReferralVoodoo Website, so as to produce multiple accounts; generate automated searches, requests, or queries; or access, collect, intercept, strip, scrape, or mine information or data from, or in transit to or from, the ReferralVoodoo Website, including any software that reads areas of RAM or streams of network traffic, unless specifically authorized by ReferralVoodoo;
  13. Systematically retrieve data or other information from the ReferralVoodoo Website, to create or compile a collection, compilation, database, or directory, whether by manual methods, web robots, or otherwise, unless specifically authorized by ReferralVoodoo;
  14. Use reverse looking-up, tracing or seeking to trace any information on any other user or visitor to the Website or any other customer of ReferralVoodoo, including any Account not owned by you, to its source, or exploit the Website or information made available or offered by or through the Website, in any manner in which the purpose is to reveal or misuse any information, including but not limited, to Personal Information, other than your own information, as provided by the Website.
  15. License, sublicense, sell, rent, convey, pledge as security, lend, loan, lease, transfer, assign, reproduce, or distribute to a third party the ReferralVoodoo Website, Technology, or your rights to either, or otherwise encumber the rights and licenses granted hereunder;
  16. Copy, record, republish, download, display, post, save, disclose, modify, store, co-brand, alter, or transmit in any form or by any means any part of the ReferralVoodoo Website or Technology, or create compilations or derivative works of the ReferralVoodoo Website or Technology or any part thereof;
  17. Dissemble, decompile, reverse-compile, translate, adapt, reverse-engineer, or otherwise attempt to derive any part of the ReferralVoodoo Website or Technology or its method of operation;
  18. Access the ReferralVoodoo Website or Technology in order to build similar or competitive websites, platforms, or services; or
  19. Use, display, mirror, or frame any part of the ReferralVoodoo Website or Technology, including archives, layout, design, or proprietary information contained therein or on any related webpage or form without our express written consent.
  20. Generate, facilitate or send, via email, phone or other means, messages to Members or other Registered or Non-Registered Users in an excessive (as determined in ReferralVoodoo’s sole discretion) or harassing manner, or to such users who have asked not to be contacted.
INDEMNIFICATION. Customer shall defend, indemnify, and hold harmless Big Magic and each of the Big Magic Associates (as defined below) against any “Indemnified Claim,” meaning any third-party claim, suit, or proceeding arising out of or related to Customer’s alleged or actual use of, misuse of, or failure to use the System, including without limitation: (a) claims by Users or by Customer’s employees, as well as by Customer’s own customers; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Customer Data; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the System through Customer’s account, including without limitation by Customer Data; and (d) claims that use of the System through Customer’s account harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. Indemnified Claims include, without limitation, claims arising out of or related to Big Magic’s negligence. Customer’s obligations set forth in this Article 9 include retention and payment of attorneys and payment of court costs, as well as settlement at Customer’s expense and payment of judgments. Big Magic will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (The “Big Magic Associates” are Big Magic’s officers, directors, shareholders, parents, subsidiaries, agents, representatives, advisors, successors, and assigns.)
LIMITATION OF LIABILITY.
1. Dollar Cap. BIG MAGIC’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT OF THE FEES ACTUALLY PAID BY CUSTOMER TO BIG MAGIC IN A PERIOD OF TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH CUSTOMER PRESENTS A CLAIM TO BIG MAGIC WITH RESPECT TO BIG MAGIC’S BREACH OF BIG MAGIC’S OBLIGATIONS UNDER THIS AGREEMENT.
2. Exclusion of Consequential Damages. IN NO EVENT WILL BIG MAGIC BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
3. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 10 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF BIG MAGIC IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article 10, Big Magic’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Big Magic’s liability limits and other rights set forth in this Article 10 apply likewise to Big Magic’s Ambassadors, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, advisors and other representatives.
TERM AND TERMINATION.
1. Term. The term of this Agreement (the “Term”) shall commence on the Effective Date and continue for the initial term selected by the Customer in the online registration process as specified in a Customer Order. Following its expiration, the Term will renew for successive terms equal to the initial term specified in the Customer Order, unless either party refuses such renewal by written notice to the other party 30 or more days before the renewal date.
2. Termination for Cause. Either party may terminate this Agreement and any Customer Order if the other party: (i) fails to cure any material breach (including, without limitation, Customer’s failure to pay the Fees) of this Agreement within thirty (30) days after written notice of such breach; (ii) ceases operation without a successor; or (iii) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days thereafter). Big Magic may disable links and reporting and payment functionality with respect to Ambassadors of Customer effective immediately in its sole discretion.
3. Effects of Termination. Upon termination of this Agreement, Big Magic shall discontinue Customer’s access to the System and the Cloud Services and Customer shall cease all use of the System and the Cloud Services and shall promptly delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay the Fees (unless the termination is by Customer for cause); (b) Articles and Sections 6 (IP & Feedback), 7 (Confidential Information), 8.3 (Warranty Disclaimers), 9 (Indemnification), 10 (Limitation of Liability) and 12 (Publicity); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
PUBLICITY. In further consideration of the rights granted hereunder to Customer, Customer agrees to permit Big Magic to use Customer’s name and trademarks and service marks to identify Customer as a Big Magic’s customer on the Website, in Big Magic’s marketing materials and in other sales and marketing activities, provided that Customer does not notify Big Magic in writing of its revocation of such permission. Customer agrees to cooperate with Big Magic in reasonable publicity efforts involving the System, such as, for example, media releases and marketing materials in accordance with Big Magic’s reasonable request.
MISCELLANEOUS.
1. Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. The parties agree that no Big Magic employee or contractor will be an employee of Customer.
2. Notices. Big Magic may send notices pursuant to this Agreement to Customer’s email contact points provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to Big Magic, and such notices will be deemed received 72 hours after they are sent in writing and if delivered personally, mailed via registered or certified mail (return receipt requested and postage prepaid), given by facsimile (confirmed by certification of receipt) or sent by courier (confirmed by receipt) addressed to Big Magic Inc., 211 Warren Street, Newark, NJ 07103.
3. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
4. Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Big Magic’s express written consent. Except to the extent forbidden in this Section 13.4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
5. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
6. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
7. Choice of Law & Jurisdiction This Agreement will be governed solely by the internal laws of the State of Delaware, without reference to: (a) any conflicts of law principles that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Essex County, New Jersey.
8. Conflicts. In the event of any conflict between this Agreement and any Big Magic policy posted online, including without limitation the Privacy Policy, the terms of this Agreement will govern.
9. Headings. The section headings in this Agreement are intended solely for convenience of reference and shall be given no effect in the construction or interpretation of this Agreement.
10. Technology Export. Customer shall not: (a) permit any third party to access or use the System in violation of any U.S. law or regulation; or (b) export any software provided by Big Magic or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the System in, or export such software to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).
11. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
12. Amendment. Big Magic may amend this Agreement from time to time by posting an amended version at its Website and, solely with respect to Customers, sending Customer written notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless Customer first gives Big Magic written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue under its original provisions, and the amendment will become effective at the start of Customer’s next Term following the Proposed Amendment Date (unless Customer first terminates this Agreement pursuant to Article 11, Term & Termination). Customer’s continued use of the Cloud Services following the effective date of an amendment will confirm Customer’s consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party. Notwithstanding the foregoing provisions of this Section 13.12, Big Magic may revise the Privacy Policy and any other Big Magic policy at any time by posting a new version of either at the Website, and such new version will become effective on the date it is posted.
13. Acceptance. CUSTOMER ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS. THE PERSON ACCEPTING THIS AGREEMENT ON CUSTOMER’S BEHALF THROUGH Big Magic’S ONLINE REGISTRATION PROCESS OR BY MEANS OF A CUSTOMER ORDER REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS AND CONDITIONS. Customer further acknowledges that this Agreement does not have to be signed in order to be binding. Customer will have indicated its assent to the terms of the Agreement by clicking on the “Accepted and Agreed to” (or similar button) that is presented to Customer at the time of its opening of an online account with Big Magic and submitting an order for the Cloud Services through Big Magic’s online registration process on the Website.

Updated on August 23, 2019

APPENDIX A FOR HEALTHCARE CLIENTS

THIS ADDENDUM CONSTITUTES AN EXPRESS CONTRACTUAL ASSUMPTION OF ALL RISKS, AND BOTH A WAIVER AND RELEASE FROM ALL LIABILITY, FOR ANY NEGLIGENCE OR MISUSE OF OUR PRODUCT WITH REGARD TO MEDICARE ANTI-KICKBACK STATUTE (42 U.S.C. 1320a-7b), OR SIMILAR FEDERAL, STATE OR LOCAL REGULATIONS GOVERNING PROHIBITED PAYMENTS TO AND BY HEALTHCARE PROVIDERS.

It is unlawful for any person, including any health care provider or health care facility, to: (a) Offer or pay any commission, bonus, rebate, kickback, or bribe, directly or indirectly, in cash or in kind, or engage in any split-fee arrangement, in any form whatsoever, to induce the referral of patients or patronage to or from a health care provider or health care facility. (b) Solicit or receive any commission, bonus, rebate, kickback, or bribe, directly or indirectly, in cash or in kind, or engage in any split-fee arrangement, in any form whatsoever, in return for referring patients or patronage to or from a health care provider or health care facility; (c) Solicit or receive any commission, bonus, rebate, kickback, or bribe, directly or indirectly, in cash or in kind, or engage in any split-fee arrangement, in any form whatsoever, in return for the acceptance or acknowledgement of treatment from a health care provider or health care

Facility.

BY SIGNING THIS AGREEMENT, YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOU ARE NOT TO OFFER TO ANY PARTY ANY FORM OF COMPENSATION THAT VIOLATES MEDICARE ANTI-KICKBACK STATUTE (42 U.S.C. 1320a-7b), OR SIMILAR FEDERAL, STATE OR LOCAL REGULATIONS GOVERNING PROHIBITED PAYMENTS.

YOU ACKNOWLEDGE THAT YOU HAVE SOUGHT COMPETENT COUNSEL ON THE USE OF THE PRODUCT, SPECIFICALLY REGARDING ANY REWARDS OR RECOGNITION YOU WILL OFFER AMBASSADORS.

NAVIGATION

REACH OUT :

CONNECT :