Merchant Terms
1. General.
During the length of the Merchant Agreement, LiveMobi will provide the LiveMobi Programs (this sentence doesn’t make sense). In the event of any inconsistency among terms and conditions of the Merchant Agreement and these Terms and Conditions (“Agreement”), the order of control shall be: (i) Merchant Terms & Conditions, (ii) Merchant Agreement, and (iii) any other exhibits, addenda or attachments to the Terms & Conditions including any links contained in the Merchant Agreement or these Terms and Conditions, which are incorporated by reference herein. Any capitalized terms that are not defined in these Terms and Conditions have the meanings ascribed to them in the Merchant Agreement.
2. Intellectual Property Rights.
(i) LiveMobi owns all right, title and interest in and to any data provided to LiveMobi by your customer or an end user to LiveMobi. (“Customer Data”). LiveMobi owns all right, title and interest in and to the LiveMobi Programs including, without limitation, branding, data, Customer Data, technology, processes, programs, code, any intellectual property rights and any improvements, modifications, enhancements or refinements thereto (“Intellectual Property”). Except as set forth in the Agreement, all rights not expressly granted to you are reserved and shall be considered the Intellectual Property of LiveMobi. You agree not to decipher, decompile, disassemble, reconstruct, translate, reverse engineer, or discover any of the LiveMobi Programs, Intellectual Property or ideas, algorithms, file formats, programming, or interoperability interfaces underlying such Intellectual Property.
3. Restrictions.
You: (i) will use the LiveMobi Programs solely for your internal business purposes, and (ii) will not, for itself, any affiliate of you or any third party (a) sell, rent, lease, license or sublicense, assign, distribute, or transfer the LiveMobi Programs or Intellectual Property; (b) modify, change, alter, create derivative works of, decipher, decompile, disassemble, reconstruct, translate, reverse engineer, or discover any source code of the underlying ideas, algorithms, file formats, programming, or interoperability interfaces of the LiveMobi Programs or Intellectual Property; (c) copy any tangible versions of the LiveMobi Programs or Intellectual Property; or (d) remove from any of the LiveMobi Programs or Intellectual Property any language or designation indicating the confidential nature thereof or the proprietary rights of LiveMobi. In addition, you will not export, re-export or permit any third party to export or re-export, directly or indirectly, the LiveMobi Programs or Intellectual Property where such export or re-export is prohibited by applicable law without appropriate licenses and clearances.
LiveMobi retains the right to exclusively approve, modify, or refuse any LiveMobi related communications to end users.
4. Fees; Pricing and Payment Terms; Taxes.
(i) LiveMobi’s current fees for the LiveMobi Programs and its services are set forth in the Merchant Agreement. LiveMobi reserves the right to amend the fees payable for the LiveMobi Programs at any time upon thirty (30) days prior notice to you.
(ii) You will be responsible for any sales, use, value-added or import taxes, customs duties or similar taxes assessed in accordance with applicable law with respect to the provision of the LiveMobi Programs.
(iii) Notwithstanding anything herein to the contrary, LiveMobi, in its sole discretion, may suspend or terminate the Agreement and corresponding access and right to use the LiveMobi Programs, at any time, upon notice to you, if you have not paid all amounts due on or before the payment due date, or for any other material breaches of the Merchant Agreement, Merchant Terms and Conditions, or any other exhibits, addenda or attachments to the Terms & Conditions including any links contained in the Merchant Agreement or these Terms and Conditions, which are incorporated by reference herein. You are responsible for amounts that remain outstanding as of the date of such termination including early cancellation fees. You agree to pay reasonable attorneys’ fees and court costs incurred by LiveMobi to collect any unpaid amounts owed by you. (iv) LiveMobi provides standard installation of its LiveMobi Programs, however, in the event of a complex installation such as when third party or outside technical support is required to complete the installation, LiveMobi will provide up to one hour of such technical support. Technical support exceeding one hour will be billed at cost to the Merchant.
5. Term; Termination; Survival.
The Agreement will remain in full force specified in the Merchant Agreement. At the end of any Subscription Plan, unless you select a new Subscription Plan, your Subscription Plan will automatically convert to a month-to-month Subscription Plan. This will be ongoing until you select a new Subscription Plan or provide at least sixty (60) days written cancelation notice. Each party shall have the right to terminate the Agreement upon written notice to the other party: (i) upon the institution of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of debts of the other party that is not otherwise dismissed within sixty (60) days of such institution; (ii) upon the making of an assignment for the benefit of creditors by the other party; or (iii) upon the dissolution of the other party.
6. Representations and Warranties; Disclaimer.
(i) LiveMobi warrants that LiveMobi has the authority to enter into this Agreement.
(ii) You represent and warrant to LiveMobi that: (a) you have the authority to enter into this Agreement; and (b) you will only use the LiveMobi Programs for lawful purposes and will not violate any law of any country or the intellectual property rights of any third party. (iii) EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 6, LiveMobi EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF QUALITY, ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY AGREE THAT THE USE OF LiveMobi PROGRAMS OR SERVICES AND THE INTERNET IS AT YOUR SOLE RISK. LiveMobi PROGRAMS AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
7. Confidential Information.
Any information that you know or have reason to know (either because such information is marked or otherwise identified orally or in writing as confidential or proprietary, has commercial value, or because it is not generally known in the relevant trade or industry) is “Confidential Information” of LiveMobi and will remain the sole property of LiveMobi.. Such Confidential Information includes but is not limited to data, information (including personally identifiable information), ideas, materials, specifications, procedures, schedules, software, technical processes and formulas, source code, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, usage rates, advertising relationships, projections, marketing data and other similar information provided by a party. For avoidance of doubt, Customer Data shall be deemed Confidential Information of LiveMobi. You agree that you will not disclose, use, modify, copy, reproduce or otherwise divulge such Confidential Information to any third party without the prior written approval of LiveMobi except that you shall have the right to disclose such Confidential Information to the extent required by applicable law or to the directors, officers or employees of your company who have a need to know such Confidential Information in order to perform its obligations under the Agreement and to the extent such directors, officers or employees are subject to obligations of confidentiality and non-disclosure that are substantially similar to the obligations set forth in the Agreement. The prohibitions contained in this Section will not apply to information (i) already lawfully known to the receiving party prior to such disclosure by the disclosing party; (ii) independently developed by the receiving party without access to or use of the disclosing party’s Confidential Information; (iii) disclosed in published materials; (iv) generally known to the public; or (v) lawfully obtained from any third party. In addition, a party will not be considered to have breached its obligations under the Agreement to the extent Confidential Information is required to be disclosed by any governmental authority, provided that, to the extent legally practicable, the receiving party advises the disclosing party prior to making such disclosure in order that the disclosing party may object to such disclosure, take action to ensure confidential treatment of the Confidential Information, or take such other action as it considers appropriate to protect the Confidential Information.
8. Dispute Resolution; Governing Law.
In the event of a reward dispute or mistake between a Merchant and User, LiveMobi may in its sole discretion unilaterally make adjustments to User reward points. To the extent any disputes arise under the Agreement or otherwise between the parties, the parties will first attempt in good faith to resolve their dispute informally. This Agreement is governed by the State of Arizona and you expressly agree to the exclusive jurisdiction for any claim or dispute with LiveMobi in the federal and state courts within the jurisdiction of Maricopa County, Arizona.. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the Agreement.
9. Indemnification.
You will defend, indemnify, and hold LiveMobi and its affiliates and their respective directors, officers, employees, agents and representatives harmless from and against any third party suit, proceeding, assertion against any damages, judgments, liability, costs and expenses (including without limitation any reasonable attorneys’ fees) incurred arising from your material breach of this Agreement, your unauthorized use or misuse of the LiveMobi Programs or Intellectual Property and any unauthorized combination of LiveMobi Programs or Intellectual Property with any hardware, software, products, data or other materials not specified or provided by LiveMobi.
10. Limitation of Liability.
LiveMobi’s aggregate liability for all claims (including claims for indemnification of third party damages) arising out of the Agreement, whether in contract, tort or otherwise, will not exceed the amount of fees paid by you to LiveMobi under the Agreement during the twelve (12) months preceding the date on which the claim occurred. To the maximum extent permitted by applicable law, in no event will LiveMobi be liable for any loss of business profits, business interruption, loss of data or any special, indirect, exemplary, incidental or consequential damages arising from or in relation to the Agreement or the use of the Services, however caused and regardless of theory of liability. In addition, LiveMobi will not be liable for damage (physical or otherwise) incurred by the merchant upon any asset or property from the installation or removal of any LiveMobi product or add-on in-store and will not be responsible for replacement or cost of repair if damages occur. This limitation will apply even if such damages were foreseeable and you have been advised or are aware of the possibility of such damages.
11. Notice.
Except where explicitly provided otherwise herein, any notice required or permitted hereunder will be delivered to the contact person listed on the Order Information as follows (with notice deemed given as indicated): (i) by personal delivery when delivered personally; (ii) by established overnight courier upon written verification of receipt; (iii) by facsimile transmission when receipt is confirmed orally; (iv) by certified or registered mail, return receipt requested, upon verification of receipt; or (v) by electronic delivery when receipt is confirmed orally.
12. Assignment.
You may not, without the prior written consent of LiveMobi, assign the Agreement, in whole or in part, either voluntarily or by operation of law, and any attempt to do so will be a material default of the Agreement and will be void. The Agreement will be binding upon and will inure to the benefit of the respective parties hereto, their respective successors in interest, legal representatives, heirs and assigns.
13. No Third Party Beneficiaries.
The Agreement is solely for the benefit of the parties and their successors and permitted assigns, and does not confer any rights or remedies on any other person or entity.
14. Amendment; Waiver.
This Agreement may be changed only by written agreement signed by both LiveMobi and you. The failure of either party to exercise or enforce any of its rights under the Agreement will not act as a waiver of subsequent breaches and the waiver of any breach will not act as a waiver of subsequent breaches.
15. Severability.
If any provision of the Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be enforced to the maximum extent permissible under applicable law and the other provisions of the Agreement will remain in full force and effect.
16. Force Majeure.
If either party is prevented from performing any of its obligations under the Agreement due to any cause beyond the party’s reasonable control including, without limitation, an act of God, fire, flood, explosion, terrorism, war, embargo, government regulation, civil or military authority, acts or omissions of carriers, transmitters, providers, or acts of vandals, or hackers. The time for that party’s performance will be extended for the period of the delay or failure to perform due to such occurrence, except that you will not be excused from the payment of any sums of money owed by you to LiveMobi provided prior to the force majeure event.
17. Independent Contractor.
The Agreement will not be construed as creating or constituting a partnership, joint venture, or agency relationship between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
18. Compliance with Laws.
Each party will comply with all applicable laws, regulations, and ordinances relating to their performance hereunder.
19. Entire Agreement.
The Agreement will constitute the entire agreement between LiveMobi and you with respect to the subject matter hereof and all prior oral or written agreements, representations or statements with respect to such subject matter are superseded hereby.
