End-User License Agreement
BIZZUKA , INC. (“BIZZUKA”) IS WILLING TO LICENSE ITS CONTENT MANAGEMENT SOFTWARE, CUSTOM PLUGINS, PURCHASED PLUGINS, CUSTOM DEVELOPED SOFTWARE, AND/OR PROPRIETARY SOFTWARE (“SOFTWARE” OR “SERVICE”) TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT THE TERMS CONTAINED IN THIS LICENSE. BY SIGNING OUR SERVICE PLAN ORDER FORM AND ACCESSING THE SOFTWARE IN ANY FASHION, YOU ARE CONSENTING TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH IN THIS END USER LICENSE AGREEMENT (https://www.bizzuka.com/eula), THE TERMS OF SERVICE (https://www.bizzuka.com/terms-use-dmca-notice), THE SaaS AGREEMENT (https://www.bizzuka.com/saasagreement), AND ANY ASSOCIATED SERVICE PLAN ORDER FORMS. IF YOU DO NOT AGREE TO THESE TERMS, THEN BIZZUKA IS UNWILLING TO LICENSE THE SOFTWARE TO YOU AND YOU SHOULD NOT USE THE SOFTWARE.
Your use of the Software indicates your acceptance of these terms and conditions. If you do not agree to these conditions, do not use the Software, and disconnect from the Service.
- “Software” or “Service” means the Bizzuka Software, in object code only, provided by Bizzuka to you hereunder as a Service, together with all Bizzuka-authorized updates, replacements or modifications provided to you. This Software may contain software licensed to Bizzuka by third parties.
- “Documentation” means the user guides, reference manuals, installation materials and other written materials relating to the Software which Bizzuka makes available in electronic form at the Bizzuka Website at bizzuka.com.
- “Service” means the Bizzuka service accessible through use of the Software.
- “Website” means the Internet site located at bizzuka.com.
2. Limited Use License
Bizzuka grants to you the non-transferable (except as provided below), non-exclusive right, without the right to sub-license or rent, to use the Software solely for the purpose set forth in the applicable terms and conditions located at bizzuka.com/terms. You may not distribute copies of the Software or any accompanying Documentation to others, nor may you modify or translate the Software or Documentation. Your subscription to the Service is limited to the components for which you registered in your Service Plan Order form unless you have executed a Service upgrade or change document.
This Agreement is not a sale of the Software or any copy. Bizzuka (or its licensors) retains all rights, interest, title and ownership of the Software and the Documentation, including patents, copyrights, trademarks, trade secrets, and other proprietary rights applicable thereto, and all copies, regardless of the form or media on or in which the original or any copy may exist. The Software and the Documentation are protected by United States and other applicable laws and by international treaty provisions. Except as stated herein, this Agreement does not grant you any rights to patents, copyrights, trade secrets, trademarks or any other rights in respect of the Software and Documentation.
4. Notification of Problems and Suggestions
Please notify [email protected] of any problems that you encounter in using the Software. You may also notify Bizzuka of any suggestions, modifications or enhancements to the Software, provided, however, that you agree that all such suggestions for modifications or enhancements to the Software are hereby assigned to Bizzuka, shall be the sole and exclusive property of Bizzuka, and shall be considered Confidential Information of Bizzuka.
You acknowledge that the Software and Documentation contain proprietary and confidential property of Bizzuka and/or Bizzuka’s licensors (collectively, “Confidential Information”). You will not disclose, provide or otherwise make available any such Confidential Information to any third parties.
6. Other Restrictions
Except as expressly provided herein, you may not copy, nor encourage or allow copying of the Software or Documentation. You may not cause or permit the disclosure, copying, renting, licensing, sublicensing, leasing, dissemination or other distribution of the Software or the Documentation by any means or in any form, without the prior written consent of Bizzuka. You may not use the Software to conduct a service bureau or similar business for the benefit of third parties. You agree that you will not, directly or indirectly, reverse engineer, disassemble, decompile or otherwise alter the Software.
7. DISCLAIMER OF WARRANTIES AND CONDITIONS
THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND, STATUTORY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, BIZZUKA AND/OR ITS LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OR CONDITIONS, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SOFTWARE OR DOCUMENTATION, THEIR TITLE OR NON-INFRINGEMENT OF THIRD PARTY’S RIGHTS, THEIR QUALITY, PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE USE, QUALITY AND PERFORMANCE OF THE SOFTWARE OR DOCUMENTATION RESTS WITH YOU. BIZZUKA SHALL IN NO WAY BE RESPONSIBLE FOR ANY DAMAGES CAUSED TO YOUR COMPUTER SYSTEM OR TO ANY DATA ON YOUR SYSTEM OR STORED USING THE SOFTWARE ARISING FROM YOUR USE OF THE SOFTWARE.
If you have questions about performance of this product, you can contact Bizzuka at [email protected] (or such other address as Bizzuka may make available from time to time).
8. Limitation of Liability
IN NO EVENT WILL BIZZUKA OR ITS LICENSORS BE LIABLE FOR SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES RESULTING FROM LOSS OF DATA, LOSS OF USE, OR LOSS OF ANTICIPATED PROFITS) RESULTING FROM EITHER THE SOFTWARE OR DOCUMENTATION OR BOTH, EVEN IF BIZZUKA OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM A PARTY’S GROSS NEGLIGENCE TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION.
BIZZUKA’S OR ITS LICENSORS’ LIABILITY TO YOU OR ANY RELATED THIRD PARTY FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE TOTAL AMOUNTS PAID BY YOU DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING ANY CLAIM
Some jurisdictions do not allow the exclusion or limitation of incidental, consequential, special, punitive or indirect damages, or the limitation of liability to specified amounts, so the above limitation or exclusion may not apply to you.
This Agreement is effective until terminated. The actual term of service is outlined in your Service Plan. You may terminate the Agreement at any time after the term of service by providing Bizzuka with a 30-day written notice at [email protected]. This Agreement shall terminate automatically and your access to the Service will be suspended if you fail to comply with any term or condition contained herein, as applicable, or in the applicable terms and conditions located at bizzuka.com/saasagreement.
10. Modifications to Agreement
Except as otherwise provided in this Agreement, you agree that during the term of this Agreement, we may: (1) revise the terms and conditions of this Agreement; and/or (2) change part of the Services provided under this Agreement at any time. Any such revision or change will be binding and effective 30 days after posting of the revised Agreement or change to the service(s) on Bizzuka Websites, or upon notification to you by email or United States mail. You agree to periodically review our Websites, including the current version of this Agreement available on our Websites, to be aware of any such revisions. If you do not agree with any revision to the Agreement, you may terminate this Agreement at any time by providing us with a 30-day written notice. Notice of your termination will be effective on receipt and processing by us. Any fees paid by you if you terminate your Agreement with us are nonrefundable, except as expressly noted otherwise in one or more of the Schedules to this Agreement, but you will not incur any additional fees. By continuing to use Bizzuka Services after any revision to this Agreement or change in service(s), you agree to abide by and be bound by any such revisions or changes. We are not bound by nor should you rely on any representation by (i) any agent, representative or employee of any third party that you may use to apply for our services; or in (ii) information posted on our Website of a general informational nature.
This Agreement constitutes the entire agreement between the parties, and supersedes all prior written or oral agreements pertaining to the subject matter hereof. This Agreement shall not be amended, altered or changed by any purchase order or other instrument submitted by you, whether formally rejected by Bizzuka or not. If Bizzuka provides any modification, enhancement, replacement or update for the Software to you, such modification, enhancement, replacement or update shall be governed by the terms of this Agreement, or any additional or different terms and conditions that Bizzuka may require as a condition to your using such modification, enhancement, replacement or update. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable, and shall not affect the enforceability of any other provision of this Agreement.
12. Respect for Rights and Indemnification
You may not use the Software in conjunction with any device or service designed to circumvent technological measures employed to control access to, or the rights in, a content file or other work protected by the copyright laws of any jurisdiction.
13. Choice Of Law and Language
This Agreement will be governed by, and any arbitration hereunder shall apply, the laws in force in the State of Louisiana excluding (i) the application of its conflicts of law rules; (ii) the United Nations Convention on Contracts for the International Sale of Goods; (iii) the 1974 Convention on the Limitation Period in the International Sale of Goods (the “1974 Convention”); and (iv) the Protocol amending the 1974 Convention, done at Vienna April 11, 1980.
The governing language of this Agreement, the Service, the Software and the Documentation is English. Les parties confirment leur volonté expresse que le présent Contrat et tous les contrats, documents et avis qui s’y rapportent soient rédigés en langue anglaise. (translation: “The parties confirm their express wish that this Agreement and all related agreements, documents and notices be drawn up in the English language.”).
Customer agrees to pay a monthly fee based on the applicable SoundOff package chosen. Customer may increase the minimum monthly sending volume in order to lower this rate at any time. Customer agrees to be charged for a minimum monthly email send volume on the 1st day of every month. The minimum send rate is billed one month in advance. Any sends over and above the monthly minimum will be charged to the Customer’s account on the 1st day of the month, for the month in arrears. This minimum will not be applied to the first (partial) month of the Initial Term.
Customer agrees and acknowledges that Customer is responsible for controlling access to the Licensed Software and retains responsibility and liability for any and all usage of the Licensed Software, as well as any campaigns, content and activity.
Requests submitted to the Bizzuka support queue are processed within 48 hours, in the order they are received (exceptions are given to operational issues). Technical support hours of operation are Monday to Friday, 9 am to 5 pm CST. Response times may vary in observance of American holidays. The pricing quoted in this term sheet is considered void if it is not exercised within 7-days of the proposed effective date.
Implementation Rights Ownership; License.
Implementation. Client may incorporate, within the Client’s Sites, references to the Bizzuka Service and may display and distribute content uploaded to the Bizzuka Service by Client (the “Content Source Files”) or by End Users (the “User Content”).
Ownership. As between Client and Bizzuka, Client retains all ownership rights in and to the copyrights and all other rights and interest in and to the Client Sites and all Content Source Files, subject to the following limited license grant to Bizzuka. As between Bizzuka and Client, Bizzuka retains all ownership rights in and to the copyrights and all other rights and interests in and to the Bizzuka Marks, as defined below, the Downloadables, as defined below, and the Bizzuka Service. For clarity, the Bizzuka Service does not include Content Source Files, User Content, or other third party content.
Limited License Grant. Client hereby grants to Bizzuka a worldwide, non-exclusive, fully paid up, royalty free license to use, reproduce, distribute, display, perform, and modify (including, but not limited to resizing, reformatting, encoding and transcoding) as necessary for Bizzuka to make available the Content Source Files and User Content through the Bizzuka Service and to provide Client access through the Bizzuka management interface or other Bizzuka tools and views.
Bizzuka and/or Fliqz Trademarks, Logo.
The Bizzuka Service may include Bizzuka and/or Fliqz trademarks, trade names, logos, and other proprietary notices (the “Bizzuka Marks”). Unless otherwise approved in writing by Bizzuka, Client will not remove, obscure, or alter any Bizzuka Marks incorporated within the Bizzuka Service. Bizzuka hereby grants to Client a limited, non exclusive, non transferable license, with no right to sub license, to display the Bizzuka Marks on the Client Sites. Any display of the Bizzuka Marks is subject to the Bizzuka trademark usage guidelines, as may be provided by Bizzuka in writing to Client from time to time. Any goodwill generated through use of the Bizzuka Marks is owned by Bizzuka.
Confidentiality of Agreement. Except as otherwise required under applicable law or regulation or for the purposes of legal or financial due diligence in connection with an investment, merger, or acquisition, each party shall maintain the confidentiality of the terms of this Agreement and shall not disclose such terms to any third party without the prior written consent of the other party.
Support. During the Term, Bizzuka will assign a contact (the “Technical Representative”), to Client and provide commercially reasonable assistance to integrate and use the Bizzuka Service. Requests submitted to the Bizzuka support queue are processed within 48 hours, in the order they are received (exceptions are given to operational issues). Technical support hours of operation are Monday to Friday, 9 am to 5 pm CST. Response times may vary in observance of American holidays. Bizzuka reserves the right to charge a reasonable fee if the amount of support provided hereunder exceeds thirty (30) minutes of support in any given month.
Prohibited Uses. Client agrees not to:
- use the Bizzuka Service for any purpose that is unlawful or prohibited by this Agreement;
- reproduce, duplicate, copy, sell, trade, resell, distribute or exploit any portion of the Bizzuka Service;
- attempt to gain unauthorized access to the Bizzuka Service, or any part of it through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Bizzuka Service (including by uploading malicious code) or any activities conducted on the Bizzuka Service;
- not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Bizzuka Service or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation; and
- not to modify, adapt, translate or create derivative works based upon the Bizzuka Service or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.