The Services (as hereinafter defined) obtained from or through eData d.o.o (“eData”) are licensed, not sold, to a subscriber (“Customer”) for use only under the terms of this license, unless other products or services are accompanied by a separate license agreement, in which case the terms of that separate license agreement will govern, subject to Customer’s prior acceptance of that separate license agreement. eData reserves all rights not expressly granted to Customer. The Services to be provided under this Licensed Application Customer License Agreement (this “License”) consist of software and related services accessed through eData’s website (the “Services”). The Services that are subject to this license are sometimes referred to in this license as the “Licensed Application”.
BY USING THE SERVICES, CUSTOMER IS ACCEPTING AND AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
Article I: Scope of License
eData hereby grants to Customer a limited, revocable, non-transferrable license for Customer to access and use the Services on any Internet-accessible device owned or controlled by Customer. Customer agrees that the Services contain proprietary content, information and material that is protected by applicable intellectual property and other laws, including but not limited to copyright, and that Customer will not use such proprietary content, information or materials in any way whatsoever except for permitted uses of the Services. Customer may not distribute or make the Licensed Application available over a network where it could be used by multiple devices or multiple persons at the same time, except as specifically provided herein and in accordance with the permissions granted to Customer pursuant to the level of service purchased by Customer. Customer may not rent, lease, lend, sell, redistribute or sublicense the Licensed Application or Services. Customer may not copy (except as expressly permitted by this license), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Licensed Application, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Licensed Application). Any attempt to do so is a violation of the rights of eData and its licensors. If Customer breaches this restriction, Customer may be subject to prosecution and damages. The terms of the license will govern any upgrades provided by eData that replace and/or supplement the original Services, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
Article II: Consent to Use of Data
Customer may not use eData’s name or trademarks without the prior written permission of eData. eData may use Customer’s name, logo and/or trademarks to identify Customer as a customer of eData.
Article III: Term and Termination
The license is effective until terminated by Customer or eData as provided herein.
For month-to-month customers, the “Term” of this Agreement shall commence upon the receipt by eData of Customer’s first payment and shall continue to renew automatically on a month-to-month basis until Customer activates the cancellation feature on Customer’s account management page and properly follows the procedures set forth therein or if eData provides Customer with at least five (5) business days’ prior written notice of eData’s intention to terminate. For year-to-year customers, the “Term” of this Agreement shall commence upon the receipt by eData of Customer’s first payment and shall continue to renew automatically for successive one year periods until either party provides the other party with prior written notice of such party’s intention to terminate at least fifteen (15) days prior to the expiration of the then-current Term; provided, however, if Customer desires to terminate such year-to-year contract prior to the expiration of the Term, Customer may do so by activating the cancellation feature on Customer’s account management page and properly following the procedures set forth therein. In such case, Customer understands, acknowledges and agrees that any prepaid License Fees shall be forfeited.
Notwithstanding III.2 above, this Agreement may be terminated by either party:
(i) on five (5) business days’ prior written notice if the other party fails to perform any of its material obligations and such failure is not cured within thirty (30) days of receipt of written notification by the non-breaching party to the breaching party;
(ii) in the event that a receiver or trustee of the assets of the other party is appointed or the other party suspends business, makes a general assignment for the benefit of creditors or becomes insolvent.
In the event Customer does not renew this Agreement or this Agreement is otherwise terminated, Customer shall cease all use of the Licensed Application and shall no longer have access to the Services nor any other future benefits that may be available to eData customers at that time. eData promptly will provide Customer with notification of account termination and a link to download Customer’s data. Customer understands, confirms and acknowledges that Customer is aware that Customer’s data will be purged, which shall include the permanent removal of all of Customer materials, content and information, within two (2) days of such notification. Upon any cancellation or termination of Customer’s account, whether by eData or Customer, no refunds, reimbursements or credits of any kind shall be provided except as provided in
Section III.2 above or Section III.6 below.
ArticleArticle II.2 III.5
If Customer desires to terminate this Agreement, Customer shall cancel Customer’s account through the account management section of eData’s website. Cancellation requests provided by phone, physical mail, email or any other means will not be honored.
If Customer is a month-to-month customer, and Customer terminates this Agreement as a result of eData’s breach of this Agreement, except as provided in Section VIII.1 hereof, no further amounts shall be due from Customer to eData and eData agrees to reimburse Customer for any payments made to eData in the 30 days prior to cancellation by Customer. If Customer is a year-to-year customer and Customer terminates this Agreement as a result of eData’s breach of this Agreement, except as provided in Section VIII.1 hereof, eData shall remit to Customer the balance of any prepaid License Fees from the date of cancellation through the end of the then-current Term.
Article IV: Payment Terms
Article IV.1 - Free Trial.
Customer shall receive a free account for using the Services that will be valid for 10 full days from the registration day. This account has several limitations, including but not limited to, (i) inability to export e-mail addresses and (ii) inability to remove Wheel of Popups branding from the software. Customer agrees that eData can deactivate Services at any time during this period of 10 days upon collecting more than 50,000 pageviews by directly or indirectly using the Services, at which point Customer shall be required to pay the required License Fee (as hereinafter defined) in order to continue to be able to use the Services.
Article IV.2 - License Fees.
In consideration for the License granted in Article I, subject to any free account and/or demonstration as provided in Section IV.1 hereof, Customer agrees to pay to eData the applicable fee(s) set forth at Wheel Of Popups website and outlined in more detail in the table below (the “License Fee”), where pageviews metric is defined as the number of opened pages on Customer website where Wheel of Popups have been installed.
|License for multiple websites||Monthly pageviews limit||Weekly pageviews limit||Daily pageviews limit||Monthly price for each account tier||Yearly price with ±20% discount|
If Customer has usage requirements that are above the limit of our largest pricing plan avaialble, eData is required to provide a custom quote to Customer within 2 days of written notice by the Customer via e-mail or live chat on Wheel of Popups website, after the Customer provides the numbers behind his expected usage requirements.
Article IV.3 - Taxes.
The fees listed in this Agreement do not include taxes. If eData is required to pay any sales, use, property, excise, value added, gross receipts, withholding or other taxes levied on the Services under this Agreement or on Customer’s use thereof, then such taxes shall be billed to and paid by Customer. This Section does not apply to taxes based on eData’s net income, franchise taxes or eData’s employer contributions and taxes.
Article IV.4 - Payment Process.
Customer understands that eData uses an authorized reseller of the Services Paddle to process all payments. Customer understands that until payment is received and verified by the paying agent, Customer shall not be permitted to use the Services.
Article IV.5 - Payments Non-Refundable.
All payments made hereunder are nonrefundable, except for relief to which Customer may be entitled under the Exclusive Remedies provision and Infringement provisions of this Agreement. Customer may not withhold or set off any amounts due under this Agreement. Failure to pay any fee when due shall constitute a material breach of this Agreement. In addition, if the Customer fails to make any payments when due for the Services, upon written notice to Customer, eData shall cease allowing access to the Services.
Article V: Establishment and Maintenance of Accounts
Customer understands that Customer must register and establish an account with eData in order for Customer to license and use the Services. Customer represents and warrants to eData that it will provide, and maintain and update promptly when necessary, true, accurate, complete and up-to-date information (“Account Data”) when prompted during the registration process. If eData believes in its reasonable business discretion that Account Data provided by Customer is inaccurate, incomplete and/or not up-to-date, eData has the right, in its sole and absolute discretion, to:
(i) suspend or terminate Customer’s account,
(ii) suspend or terminate this Agreement, and/or
(iii) reject any current or future access to and use of the Services unless and until the affected Account Data is corrected and/or made complete.
Customer understands that it is solely responsible for maintaining the confidentiality and security of account passwords, account numbers, login information and any other security or access information used by Customer to access the Services (collectively, “Login Information”), as well as preventing unauthorized access to or use of the information, files and/or data that Customer houses or uses in or with the Services.
Customer understands and acknowledges that eData assumes that any communication it receives through use of Account Data was received and/or authorized by Customer.
Article VI: Services; Third Party Materials
Use of the Licensed Application and access to the Services will require Internet access, and therefore Customer must accept additional terms of service from an Internet service provider. No portion of the Services may be reproduced in any form or by any means. Customer agrees not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services, in any manner, and Customer shall not exploit the Services in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity. Customer further agrees not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that eData shall not in any way be responsible for any such use by Customer, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that Customer may receive as a result of using any of the Services. eData, and its licensors, reserve the right to change, suspend, remove, or disable access to any Services at any time without notice. In no event will the eData be liable for the removal of or disabling of access to any such Services. eData may also impose limits on the use of or access to certain Services, in any case and without notice or liability.
Article VII: Mutual Nondisclosure
The parties agree that all information, including without limitation the Services and the written documentation for the Services provided by eData to Customer (“Documentation”), and all information concerning either party’s business, including without limitation, information pertaining to either party’s marketing plans, finances, research and development, information technology, competition, customers and personnel data exchanged by the parties under this Agreement and reasonably to be considered confidential by the disclosing party under the circumstances (collectively, “Confidential Information”) shall be maintained in confidence by the receiving party, and the receiving party shall use the Confidential Information of the other party only as authorized by this Agreement and for no other purpose (it being understood, however, that either party may disclose the Confidential Information to its employees and contractors who have a need to know, provided that same are subject to substantially similar obligations of confidentiality as those herein). In the event the Confidential Information is disclosed visually or orally, the information shall be identified as confidential at the time of such disclosure.
Each party further agrees to take the same measures it uses to protect its own Confidential Information, to prevent the unauthorized disclosure and use of the Confidential Information of the other party to third parties (except as permitted herein), and to prevent such unauthorized disclosure by its employees, agents and independent contractors who are otherwise permitted access to the information.
The obligations of the recipient with respect to any particular portion of Confidential Information shall terminate or shall not attach, as the case may be, when such information:
(i) was in the public domain at the time of the disclosing party’s communication thereof to the recipient; (ii) entered the public domain through no fault of the recipient subsequent to the time of the disclosing party’s communication thereof to the recipient; (iii) was in the recipient’s possession free of any obligation of confidence at the time of the disclosing party’s communication thereof to the recipient; (iv) was independently developed by the recipient as demonstrated by written records; or (v) is required to be disclosed by court or government order and the disclosing party has been given notice of such order.
The parties agree that a breach of the confidentiality obligations by the recipient shall cause immediate and irreparable monetary damage to the disclosing party and shall entitle the disclosing party to injunctive relief in addition to all other remedies.
Article VIII: Infringement Indemnity
If Customer is prevented from using the Services due to an actual or claimed infringement of any U.S. patent, copyright or other intellectual property right (that is not as a result of
(i) any misuse, improper use, alteration or damage of the Services by Customer;
(ii) any version of the Services not made or authorized in writing by eData;
(iii) the combination of the Services with other programming or equipment to the extent such combination has not been approved in writing by eData; or
(iv) any version of the Services other than the then current version), eData may remedy the infringement by: (i) procuring for Customer, at eData’s expense, the right to continue to use the Services;
(ii) replacing or modifying the Services at eData’s expense so that the Services become non-infringing, but substantially equivalent in functionality; or
(iii) in the event that neither (i) or (ii) are reasonably feasible, terminating the Agreement as to the infringing Services and returning any License Fees paid by Customer for the infringing Services.
Article VIII.2This Section states eData’s entire obligation to Customer with respect to any claim of infringement.
Article IX: Disclaimer of Warranties
CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE SERVICES AND THE LICENSED APPLICATION IS AT CUSTOMER’S SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH CUSTOMER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED APPLICATION AND ANY SERVICES CUSTOMER RECEIVES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND eData HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED APPLICATION AND ANY SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. eData DOES NOT WARRANT AGAINST INTERFERENCE WITH CUSTOMER’S ENJOYMENT OF THE LICENSED APPLICATION OR SERVICES, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, OR THROUGH USE OF, THE LICENSED APPLICATION WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE OPERATION OF THE LICENSED APPLICATION OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE LICENSED APPLICATION OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY eData OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE LICENSED APPLICATION OR SERVICES PROVE DEFECTIVE, CUSTOMER ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO CUSTOMER.
Article X: Limitation of Liability
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL EDATA BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO CUSTOMER’S USE OR INABILITY TO USE THE LICENSED APPLICATION OR SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF EDATA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EDATA'S TOTAL LIABILITY TO CUSTOMER FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW) EXCEED THE AMOUNT OF FIFTY U.S. DOLLARS ($50.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE, AND THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT SERVE TO ENLARGE THIS LIMIT. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE LIMITATIONS OF EDATA's LIABILITY ARE:
(A) REASONABLE IN LIGHT OF CUSTOMER’S ABILITY TO USE THE SERVICES AT THE FEES CHARGED BY EDATA, AND
(B) ESSENTIAL AND FUNDAMENTAL PARTS OF THIS AGREEMENT WHICH ARE NECESSARY TO INDUCE eData TO ENTER INTO THIS AGREEMENT. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY THE LAW APPLICABLE TO CUSTOMER. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO CUSTOMER.
Article XI: General
Customer agrees to indemnify, defend and hold eData, its subsidiaries, affiliates, officers, agents, and other partners and their employees, harmless from any loss, liability, claim, demand, costs, or expenses, including reasonable attorney’s fees, brought by any third party arising from or out of, or relating in any way to:
(a) Customer’s use of the Services or any part thereof, or
(b) Customer’s breach of this Agreement.
Communications between Customer and eData will be conducted using electronic means, through our website, via e-mail, text, SMS or other means now or hereafter used. For contractual purposes, Customer:
(a) consents to receive communications from eData in an electronic form; and
(b) agrees that all terms and conditions, agreements, notices, disclosures, and other communications that eData provides to Customer electronically satisfy any legal requirement that such communications would satisfy if in a hardcopy written form. The foregoing does not affect Customer’s non-waivable rights, if any.
The Licensed Application is copyright of eData d.o.o. All rights reserved. The trademarks, logos and service marks (“Marks”) displayed are the property of eData or may be the property of third parties. Certain uses of Marks require the permission of the owner. If Customer is interested in using eData Marks for any purpose, please contact the Legal Department of eData for permissions and terms and conditions of use.
This Agreement, and all matters arising out of or related to this Agreement, except actions arising under the patent and copyright provisions of the U.S. Code, shall be governed by the laws of the State of New York. The parties agree that this Agreement is not subject to and shall not be interpreted by the United Nations Convention on Contracts for the International Sale of Goods. No action arising out of this Agreement, regardless of form, may be brought more than two (2) years after the claiming party knew or should have known of the cause of action.
The parties will use reasonable efforts to resolve amicably any disputes that may relate to or arise under this Agreement. Any disputes that cannot be resolved will be settled exclusively by arbitration, conducted in English, in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) in New York, New York (the “Arbitration”); however, either party may seek injunctive relief from any court of competent jurisdiction. The following specific provisions will also apply to the Arbitration:
(a) the proceedings will be held before one arbitrator mutually selected by the parties (or if not agreed by the parties within thirty (30) days of the filing of the complaint for arbitration, then appointed in accordance with AAA rules);
(b) the arbitrators will apply the law chosen above;
(c) the prevailing party will be entitled to recover, in addition to any other amounts awarded, its reasonable attorney’s fees, costs, and expenses;
(d) the costs of the Arbitration (other than the parties’ costs and expenses) will be allocated among the parties in the discretion of the arbitrators; and
(e) the decision of the arbitrators will be in a writing stating the facts and law upon which the decision rests and will be given no later than ten (10) days following the conclusion of the necessary hearings. The Arbitration award will be final, non appealable and bind the parties, and any court having jurisdiction can enter judgment upon the award.
This Agreement is not assignable or otherwise transferable (including by operation of law, merger, or other business combination) by Customer without the prior written consent of eData; provided, however, no consent of eData shall be required for a transfer or assignment by Customer to any affiliate of Customer or to any person or entity which acquires all or substantially all of the equity or assets of Customer (including by operation of law, merger, or other business combination), provided that, in order for such assignment to be effective, Customer shall provide eData with written notice of such assignment or transfer as soon as practicable following the closing of such assignment or transfer.
The parties are independent contractors. Nothing contained in this Agreement will be construed or implied to create an agency, partnership or joint venture between the parties. At no time will either party make commitments or incur any charges or expenses for or on behalf of the other party.
This Agreement is intended to be for the sole and exclusive benefit of the parties hereto, eData’s suppliers, and their respective successors and permitted assigns. Nothing contained in this Agreement is intended or shall be construed to give any other person any legal or equitable right, remedy, or claim under or in respect to this Agreement or any provision herein contained.
If any provision or portion thereof of this Agreement is held to be invalid or unenforceable, the remaining provisions will remain in full force.
This Agreement, including its terms and conditions and its attachments and amendments, is a complete and exclusive statement of the agreement between the parties, which supersedes all prior or concurrent proposals and understandings, whether oral or written, and all other communications between the parties relating to the subject matter of this Agreement.