Standard Terms & Conditions
Last updated: 8/19/2024
These standard terms and conditions (including any addenda or other attachments, the“Terms”), together with any applicable Order Form, if any (the “Order Form”), constitutea binding agreement (the “Agreement”) by and between Bandwango, Inc.(“Bandwango”) and the entity or person signing the Order Form or otherwise accessingany Service (“you” or “Partner”). Each party to this Agreement is a “Party” or “party”and together, they are the “Parties” or “parties.”
By accessing or using the Services (as defined below), or authorizing or permitting anyuser to access or use any Services, you are accepting and agreeing to be bound bythese Terms, whether in connection with a paid subscription to or trial of any Services.If you are entering into these Terms on behalf of a company, organization or other legalentity (an “Entity”), you are agreeing to these Terms for such Entity and representing toBandwango that You have the authority to bind such Entity to these Terms, in whichcase the terms “Partner” and “you” and related capitalized terms herein shall refer tosuch Entity. If you do not have such authority, or if you do not agree with these Terms,you shall not use any of the Services.
1) Partner’s Duties and Responsibilities: Partner will make available toBandwango, promptly on request by Bandwango, information, assets, and materialsnecessary for Bandwango to provide the Services (as defined below). Partner willdesignate a representative to Bandwango to facilitate each party’s performance underthis Agreement including, but not limited to, acting as a contact for any and all mattersand communications concerning the Agreement.
2) License: Subject to the terms hereof, Bandwango hereby grants to Partner alimited, non-exclusive, non-transferable, non-sublicensable license during the Term (the“License”) to access and use its Destination Experience Engine software (the “LicensedProgram”) and associated services (the “Associated Services” and collectively with theLicensed Program, the “Services”) solely in connection with the administration andfacilitation of Partner’s program. The term “Licensed Program” shall also include anyupdates, modifications, improvements and add-ons of the Licensed Program licensed toPartner by Bandwango. The Licensed Program will be accessed through Bandwangoand/or Partner owned website(s). Partner may not assign, transfer, sublicense, sell orotherwise transfer or distribute copies of the Licensed Program to others. Partner maynot modify or translate the Licensed Program or the associated documentation(“Documentation”) without the prior written consent of Bandwango. Partner may notreverse assemble, decompile, reverse assemble, reverse engineer, reverse compile orotherwise attempt to create the source code from the Licensed Program. Bandwangoshall own and retain all right, title, and interest in and to the Licensed Program, theServices, the Documentation and the Aggregate/Anonymized Data (as defined below),including any intellectual property rights in or associated with the foregoing(collectively, “Bandwango IP”). Bandwango reserves all rights with respect to theBandwango IP other than those expressly granted herein. Partner hereby grantsBandwango non-exclusive, non-transferable, limited license to all Partner trademarks,copyrights, data, copyrighted materials, content and other intellectual propertyprovided by Partner to Bandwango to be incorporated in or used in connection with the Licensed Program (“Partner Content”) throughout the term of this Agreement. Inaddition, Bandwango may advertise that Partner is a customer of Bandwango and usesuch Partner Content in connection with any Bandwango sales efforts or marketingmaterials. Partner hereby represents and warrants that the Partner Content does notincorporate or otherwise infringe upon the rights of any person or organization. Partneracknowledges and agrees that Bandwango is not responsible for examining orevaluating content, accuracy, completeness, timeliness, validity, copyright compliance,legality, decency, quality or any other aspect of such Partner Content. Bandwango doesnot warrant or endorse and does not assume and will not have any liability orresponsibility to Partner or any other person for any Partner Content. Partner willindemnify, defend and hold harmless Bandwango from and against any and all claims,costs, damages, losses, liabilities and expenses (including reasonable attorneys’ feesand costs) arising out of or in connection with any claim arising from or relating to anybreach by Partner of this License or any third party claims resulting from the failure ofPartner to perform Services to any customer or otherwise as required by that particulararrangement.
3) Support: During the Term, Bandwango will use commercially reasonable effortsto provide technical support, technical maintenance, correction of technical errors andbugs, consultation, training, and the Services associated with the intended operation ofthe Licensed Program. Such Services shall include the processing of credit cardtransactions, facilitating payments for redemptions to participating destination passattractions, maintaining books and records of all transactions in accordance withGenerally Accepted Accounting Principles, and enabling Partner to generate reports onpurchasers and redemptions useful to Partner for marketing, pricing and other suchpurposes. Bandwango shall maintain agreements with all merchants participating in thepass program. If Partner notifies Bandwango of a program error respecting the LicensedPrograms, or Bandwango has reason to believe that an error exists in the LicensedProgram, Bandwango shall at its expense verify and attempt to correct such error withinseven (7) business days after the date of notification. The following implementationservices will be provided upon execution of this Agreement: (i) Partner/Venue Activationand Setup, including: account provisioning, payments/pricing setup, product/perkuploading, and deal creation; and (ii) Customized User Experience, including: (1) customaccount configuration (users, groups, permissions, preferences, etc.) according toPartner’s specific requirements/workflows, (2) setup of backend administration panel,venue redemption portal, (3) a branded customer mobile-friendly checkout website, (4)Branded consumer mobile pass, and (5) Customized On-boarding, includingadministrator and venue training session(s).
4) Fees; Taxes: Each Bandwango plan (“Pricing Plan”) is composed of acombination of Managed Services fees (“Managed Services Fees”) and PassDistributions fees (“Pass”). Managed Services include the setup of digitally distributablepasses, hosting, and maintenance of the program(s) during the term. Details of thePricing Plan Partner is agreeing to are detailed in the Order Form. The Managed ServicesFees will be paid up-front in full unless otherwise specified in the Order Form. During theTerm, Bandwango will provide onboarding and training for partner and participatingmerchants, technical support, technical maintenance, correction of technical errors and bugs, consultation, ongoing training, and the Services associated with the LicensedPrograms. The Licensed Program includes paid (“Paid Distribution”) and free (“FreeDistribution”) pass distributions (“Pass”) capabilities. “Paid Distribution” means onePass created and distributed by the Licensed Program in which transfer of money occursbetween the customer and the Licensed Program. All Paid Distributions incur a fee asdescribed in the Order Form “Commissions” which includes live customer and merchantsupport, credit card processing fees, and other delivery costs. In the event of a refundon a Paid Distribution the Partner or merchant will incur the credit card fee and will notbe reimbursed when refunds are processed through the Licensed Program. As approvedin advance and in the event that the sum of Bandwango fees and merchant remittanceexceeds the sale price of Paid Distributions, Partner will be responsible for the lossesincurred and will be billed by Bandwango on a monthly basis, subject to net 30 terms. A“Free Distribution” means a distribution generated through the Licensed Program. Incertain instances, a distribution may occur outside of the Licensed Program via third-party distributions (“Third Party Distributions”), including, (among others) distributionby Groupon, Living Social, Get Your Guide, and other websites, as well as distributionthrough tour operators and OTAs. Third Party Distribution fees do not includeBandwango fees. On Paid Distributions, all commissions shall be billed at fullcommission based on advertised or transacted price, regardless of any discountsprovided through Third Party Distributions. In the event the Partner creates a gamified,rewards, or user award which is processed and/or fulfilled and/or shipped by Bandwangothe Partner will be charged a 10% fee, including any applicable taxes and shipping fees.Remittance on returns and/or refunds for paid passes exclude all processing feescharged to Bandwango. Bandwango shall manage all accounting associated with theLicensed Program, including: (1) collection of payments, (2) dispersing payments tomerchants, (3) refunds, and (4) management of reporting. Merchants will be paid on amonthly basis, not exceeding 30 days after the end of each month. After any applicablefees outlined in the Order Form and payments have been remitted to merchants, allexcess funds shall be dispersed to Partner. Payments to Partner will be made within 30days. Partner retains the right to upgrade their Pricing Plan at any time during the Term(either by a Change Order Form or amended Order Form) in order to increase the scopeof Bandwango Services, provided that Partner shall be responsible for the upgradedFees beginning at the next billable month, through the conclusion of the Term. Unlessotherwise stated, the fees owed to Bandwango hereunder do not include any taxes.Partner is responsible for paying taxes except those assessable against Bandwangomeasured by its net income. Bandwango will invoice Partner for such Faxes ifBandwango believes it has a legal obligation to do so and Partner agrees to pay suchtaxes if so invoiced.
5) No Refunds; Unpaid Fees: No refunds or credits for fees or other charges orpayments will be provided to Partner upon Partner’s termination of its subscription tothe Licensed Program and/or Services or cancellation of Partner’s account (if applicable)in accordance with this Agreement prior to the end of the then-current Term. Except asexpressly set forth below, upon termination of this Agreement for any reason, inaddition to any other amounts Partner may owe Bandwango, Partner must immediatelypay any then-unpaid fees associated with the remainder of such Term pursuant to all applicable Order Forms. This amount will not be payable by Partner in the event Partnerterminates this Agreement as a result of an uncured material breach by Bandwango.
6) Management of Services: In addition to any other rights Bandwango hasunder this Agreement, Bandwango reserves the right, in Bandwango’s sole discretion, totemporarily suspend Partner’s access to and use of the Licensed Program or any otherServices: (a) during planned downtime for upgrades and maintenance to suchService(s) (of which Bandwango will use commercially reasonable efforts to notifyPartner in advance) (“Planned Downtime”); or (b) during any unavailability caused by aforce majeure events (as described in Section 18). Bandwango will use commerciallyreasonable efforts to schedule Planned Downtime for weekends and other off-peakhours. Partner acknowledges that the Bandwango Provider Parties may modify thefeatures and functionality of the applicable Licensed Program and/or Service(s) duringthe Term. Bandwango shall provide Partner with commercially reasonable advancenotice of any deprecation of any material feature or functionality. The “BandwangoProvider Parties” means Bandwango and any of its affiliates, service providers,suppliers, or licensors.
7) Data: Partner represents and warrants that it has all necessary rights, title andpermissions for Partner and Bandwango to access, collect, share and use Partner Dataas contemplated by this Agreement and that Partner Data does not and will not violateor infringe (a) any intellectual property, publicity, privacy or other rights, (b) anyapplicable local, state, federal and international laws, rules and regulations, including,without limitation, those related to data privacy and data transfer (“Applicable Laws”),and/or (c) any terms of service, privacy policies or other agreements governingPartner’s properties or accounts with any Non-Bandwango Services. Partner shall befully responsible for any of Partner Data submitted to the Services by any Partner useror accessed by Bandwango through any Non-Bandwango Services on Partner’s behalf asif it were submitted by Partner. To the extent Partner Data constitutes Personal Data,the Parties agree that Partner shall be deemed to be the Data Controller andBandwango shall be deemed to be the Data Processor, as those terms are understoodunder the Applicable Data Protection Law. Partner acknowledges and agrees thatBandwango may use subprocessors, who may access Partner Data and Usage Data, toprovide, secure and improve the Services. In operating the Bandwango Services,Bandwango will maintain commercially reasonable administrative, physical, andtechnical safeguards (“Safeguards”) designed to protect the security, confidentiality,and integrity of Partner Data. These safeguards include encryption of Partner Data intransmission (using SSL or similar technologies). Bandwango is not responsible for anySafeguards relating to Non-Bandwango Services, which Partner may link to through theServices at Partner’s election. Bandwango’s compliance with the provisions of thisSection shall be deemed compliance with all of Bandwango’s obligations to protectPartner Data. In addition to any other provision herein, Bandwango may also access ordisclose information about Partner or its account or users, including Partner Data andUsage Data, in order to: (a) comply with Applicable Law or respond to lawful requests orlegal process, including, without limitation, subpoenas or court orders; (b) protectBandwango’s or its customers’ or partners’ rights or property, including enforcement ofthis Agreement or other policies associated with the Services; or (c) act on a good faith belief that such disclosure is necessary to protect personal safety or avoid violation ofApplicable Law. During the Term and up to expiration or termination of this Agreement,Bandwango will have the ability to export or download Partner Data. After suchexpiration or termination, Bandwango will have no obligation to maintain or provide anyof Partner Data, and Bandwango will, unless prohibited by law or legal order, deletePartner Data in Bandwango’s Services in accordance with Bandwango’s then-currentdeletion policy. “Partner Data” means all electronic data, text, messages,communications or other materials submitted to and stored within a Service by Partner,Partner’s users, or any end-users in connection with Partner’s use of such Service.“Personal Data” means any information relating to an identified or identifiable naturalperson (‘data subject’) where an identifiable natural person is one who can beidentified, directly or indirectly, in particular by reference to an identifier such as name,an identification number, location data, an online identifier or to one or more factorsspecific to their physical, physiological, mental, economic, cultural or social identity ofthat natural person. “Usage Data” means metrics and information regarding Partner’suse of the applicable Service(s), including evaluating how Partner users and end-usersuse the Service(s). “Applicable Data Protection Law” means the laws and regulations ofthe United States (including the California Consumer Privacy Act (the “CCPA”), theEuropean Union, the European Economic Area and their member states, Switzerlandand the United Kingdom (including the General Data Protection Regulation or GDPR andany applicable national laws made under it where Partner is established in the EuropeanEconomic Area), the Swiss Federal Act of 19 June 1992 on Data Protection and theBrazilian General Data Protection Law (LGPD), all as may be amended or superseded.
8) Data Ownership: As between the parties, Partner retains all right, title andinterest in and to the Partner Data and all content contained therein (excluding anyBandwango IP). Partner hereby grants Bandwango a non-exclusive, worldwide, royalty-free right and license to collect, use, copy, store, transmit, modify and create derivativeworks of the Partner Data solely to the extent necessary to provide the LicensedProgram and Services. Partner agrees that Bandwango will have the right to generateAggregate/Anonymous Data. The parties agree that Aggregate/Anonymous Data isBandwango IP, which Bandwango may use for any business purpose during or after theterm of this Agreement (including without limitation to develop and improveBandwango’s products and services and to create and distribute reports and othermaterials). Bandwango will not distribute Aggregate/Anonymous Data in a manner thatpersonally identifies any individual users or end-users. As used in this Agreement,“Aggregate/Anonymous Data” means: (i) data generated by where the item(s) have aretail price of $0 and does not require payment from the customer, (ii) aggregation ofPartner Data with other data so that results are non-personally identifiable with respectto Partner, and (iii) anonymous learnings, logs and data regarding use of the LicensedProgram and Services.
9) IP Indemnification: Subject to Partner’s compliance with this Agreement,Bandwango will defend Partner from and against any third party claim alleging thatBandwango’s Services or any other Bandwango IP infringe a third party’s valid U.S.patent, U.S. copyright, or U.S. trademark (an “IP Claim”) and will indemnify and holdPartner harmless from and against any damages and costs finally awarded against Partner or agreed in settlement by Bandwango (including reasonable attorneys’ feesengaged by Bandwango for such defense) resulting from such third party claim,provided that (a) Partner promptly notifies Bandwango in writing of the threat or noticeof such IP Claim (but in any event with sufficient notice for Bandwango to respondwithout prejudice), (b) Bandwango will have sole and exclusive control and authority toselect defense attorneys, defend and/or settle any such IP Claim (however, Bandwangoshall not settle or compromise any claim that results in liability or admission of anyliability by Partner without Partner’s prior written consent), and (c) Partner fullycooperates with Bandwango in connection therewith. If use of Bandwango’s Services byPartner or its users has become, or in Bandwango’s opinion is likely to become, thesubject of any such IP Claim, Bandwango may at its option and expense: (a) procure forPartner the right to continue using Bandwango’s Services as set forth hereunder; (b)replace or modify Bandwango’s Services to make it non-infringing; or (c) if options (a) or(b) are not commercially reasonable or practicable as determined by Bandwango,terminate Partner’s subscription to Bandwango’s Services and refund to Partner, on apro-rated basis, any pre-paid fees corresponding to the unused portion of the Term forBandwango’s Services after such termination. Bandwango will have no liability orobligation under this Section 9 with respect to any IP Claim if such claim is caused inwhole or in part by (i) unauthorized use of Bandwango’s Services; (ii) any action arisingas a result of breach by Partner and/or its users or personnel of this Agreement; (iii) orPartner Data not being in compliance with this Agreement; (iv) compliance with designs,data, instructions or specifications provided by Partner; (v) modification of Bandwango’sServices by anyone other than Bandwango; or (vi) the combination, operation or use ofBandwango’s Services with other hardware or software where Bandwango’s Serviceswould not by itself be infringing. This Section states the sole, exclusive and entireliability of the Bandwango Parties to Partner and Partner’s sole remedy with respect toan IP Claim in connection with this Agreement.
10) Partner Indemnification: Partner will indemnify, defend and hold harmless the BandwangoParties from and against any and all claims, allegations, costs, damages, losses, liabilities, settlements andexpenses (including, without limitation, reasonable attorneys’ fees and costs) arising out of, related to or inconnection with: (a) Partner Data; (b) use by Partner or its users or end-users in breach or alleged breach ofthis Agreement; or (c) any allegation that Partner’s use of any Services or Partner Data infringes ormisappropriates a third party’s intellectual property rights. The relevant Bandwango Parties will promptlynotify Partner in writing of any such claim (but in any event with sufficient notice for Partner to respondwithout prejudice) and will reasonably cooperate with Partner, at Partner’s expense, in connection with thedefense or settlement of such claim. The Bandwango Parties may participate in the defense of any claim bycounsel of its own choosing, at its cost and expense, and Subscriber will not settle any claim withoutBandwango’s prior written consent, unless the settlement fully and unconditionally releases all BandwangoParties and does not require any Bandwango Party to pay any amount, take any action, or admit any liability.“Bandwango Parties” (each, a “Bandwango Party”) means Bandwango and any of its Affiliates, officers,directors, employees, Contractors, agents, service providers, suppliers, licensors and permitted assigns.
11) Ownership; Restrictions: Bandwango or its licensors retain all ownership andintellectual property rights to the Services and Bandwango programs. Bandwangoretains all ownership and intellectual property rights to anything developed and delivered under the Agreement. Bandwango shall be entitled, without limitation orrestrictions, to use, disclose and employ any of these Services or software on behalf ofits other and future clients. Third party technology that may be appropriate ornecessary for use with some Bandwango programs is specified in the programdocumentation or ordering document as applicable. Partner’s right to use such thirdparty technology is governed by the terms of the third party technology licenseAgreement specified by Bandwango. Partner shall not: (1) remove or modify anyprogram markings or any notice of Bandwango’s or its licensors’ proprietary rights; (2)make the programs or materials resulting from the Services available in any manner toany third party for use in the third party’s business operations (unless such access isexpressly permitted for the specific program license or materials from the Services); (3)modify, make derivative works of, disassemble, reverse compile, or reverse engineerany part of the Services (the foregoing prohibition includes but is not limited to reviewof data structures or similar materials produced by programs), or access or use theServices in order to build or support, and/or assist a third party in building or supportingproducts or services competitive with the Services or Bandwango; (4) disclose results ofany Services or program benchmark tests without Bandwango’ s prior written consent;(5) license, sell, rent, lease, transfer, assign, distribute, display, host, outsource,disclose, permit timesharing or Service bureau use, or otherwise commercially exploit ormake the Services, Bandwango programs or materials available, to any third party otherthan, as expressly permitted under the terms of the Agreement. The rights granted toPartner under this Agreement are also conditioned on the following: (a) except asexpressly provided herein, no part of the Services may be copied, reproduced,distributed, republished, downloaded, displayed, posted or transmitted in any form orby any means, including but not limited to electronic, mechanical, photocopying,recording, or other means; and (b) Partner shall make every reasonable effort toprevent unauthorized third parties from accessing the Services. Bandwangoacknowledges that all images, designs, plans, training, web sites, reports and otherwritten materials, including electronically stored versions and drafts thereof, are andshall remain the sole and exclusive property of Partner. All such materials shall beprovided to Partner upon termination of this Agreement and Partner shall thereafterhave the unrestricted right as owner to display and otherwise use all such materialswithout any royalty, remuneration or credit to Bandwango. Bandwango shall nottrademark, copyright or otherwise register in its own name any such materials. Suchmaterials shall not include any Bandwango IP, any services or software that are inexistence prior to this Agreement or created outside the scope of this Agreement, orany ideas, methods, processes, skills, or know how, whether in Bandwango’s possessionprior to or developed by Bandwango during the provisions of Services under thisAgreement, all of which is and shall remain the sole and exclusive property of Bandwango.
12) Confidentiality: Each Party will protect the other’s Confidential Informationfrom unauthorized use, access or disclosure in the same manner as each Party protectsits own Confidential Information, but with no less than reasonable care. Except asotherwise expressly permitted pursuant to this Agreement, each Party may use theother Party’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement and shall disclose suchConfidential Information (a) solely to the employees and/or non-employee serviceproviders and contractors who have a need to know such Confidential Information andwho are bound by terms of confidentiality intended to prevent the misuse of suchConfidential Information; (b) as necessary to comply with an order or subpoena of anyadministrative agency or court of competent jurisdiction; or (c) as reasonably necessaryto comply with any Applicable Law. “Confidential Information” means all informationdisclosed by one Party to the other Party which is marked confidential or which areasonable person would understand to be confidential or proprietary given the natureof the information and circumstances of disclosure. For purposes of this Agreement,Partner Data shall be deemed Confidential Information. Bandwango’s ConfidentialInformation shall include, without limitation, any non-public information regardingBandwango’s business, products and services (including, without limitation, thediscovery, invention, research, improvement, development, marketing or sale thereof aswell as templates, scorecards, modules, coaching cards, rubrics and the like), pricing,financial data, models and information, business and marketing plans, customerinformation, business opportunities, plans for development of future products,unreleased versions of products, know-how, technology, the Services and the API.Notwithstanding the foregoing, Confidential Information shall not include informationthat: (a) was already known to the receiving Party at the time of disclosure by thedisclosing party without an obligation of confidentiality; (b) was or is obtained by thereceiving Party from a third party not known by the receiving Party to be under anobligation of confidentiality with respect to such information; (c) is or becomes generallyavailable to the public other than by violation of this Agreement or another validagreement between the Parties; or (d) was or is independently developed by thereceiving Party without use of the disclosing Party’s Confidential Information.
13) Governing Law: This Agreement shall be governed by and construed inaccordance with the laws of Delaware, without regard to conflicts of law principles. Anyand all actions at law or in equity, not included within the scope of the arbitrationprovision herein, if any, shall be brought only in a court of competent jurisdictionlocated in the State of Delaware and each party hereby waives any right to any changeof venue.
14) Non-Bandwango Services: Partner and its users decide whether to enable,access or use Non-Bandwango Services. If Partner decides to enable, access or use Non-Bandwango Services, Partner’s access and use of such Non-Bandwango Services shallbe governed solely by the terms and conditions of such Non-Bandwango Services.Bandwango does not endorse, is not responsible or liable for, and makes norepresentations as to any aspect of such Non-Bandwango Services, including, withoutlimitation, their content or the manner in which they handle, protect, manage or Processdata (including Partner Data), or any interaction between Partner and the provider ofsuch Non-Bandwango Services. Bandwango cannot guarantee the continued availabilityof such Non-Bandwango Service features, and may cease enabling access to themwithout entitling Partner to any refund, credit or other compensation, if, for exampleand without limitation, the provider of a Non-Bandwango Service ceases to make theNon-Bandwango Service available for interoperation with the corresponding Service in a manner acceptable to Bandwango. Partner irrevocably waives any claim againstBandwango with respect to such Non-Bandwango Services. Bandwango are not liablefor any damage or loss caused or alleged to be caused by or in connection withPartner’s enablement, access or use of any such Non-Bandwango Services, or Partner’sreliance on the privacy practices, data security processes or other policies of such Non-Bandwango Services. Partner may be required to register for or log into such Non-Bandwango Services on their respective websites. By enabling any Non-BandwangoServices, Partner is expressly permitting Bandwango to disclose Partner’s user loginsand Partner Data as necessary to facilitate the use or enablement of such Non-Bandwango Services. “Non-Bandwango Services” means third party products,applications, services, software, networks, systems, directories, websites, databasesand information which a Service links to, or which Partner may connect to or enable inconjunction with a Service, including, without limitation, Non-Bandwango Services whichmay be integrated directly into Partner’s account by Partner or at Partner’s direction.
15) DISCLAIMER: THE LICENSED PROGRAM AND THE SERVICES ARE PROVIDED ONAN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TOTHE FULLEST EXTENT PERMITTED BY LAW, AND BANDWANGO EXPRESSLY DISCLAIMSANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOTLIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR APARTICULAR PURPOSE, AND NON-INFRINGEMENT. PARTNER ACKNOWLEDGES THATBANDWANGO DOES NOT WARRANT THAT THE LICENSED PROGRAM AND/OR THESERVICES WILL BE (AS APPLICABLE) UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE,OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION ORADVICE OBTAINED BY PARTNER FROM BANDWANGO OR THROUGH THE LICENSEDPROGRAM OR SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED INTHESE TERMS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, BANDWANGO DISCLAIMSANY OBLIGATIONS WITH RESPECT TO STORAGE OF PARTNER DATA, INCLUDING,WITHOUT LIMITATION, FOR ANY LOSS OR CORRUPTION OF PARTNER DATA. INADDITION, BANDWANGO DISCLAIMS ANY LIABILITY IN CONNECTION WITH (I) PARTNER’SCHOICE TO DOWNGRADE THE SERVICES, INCLUDING, WITHOUT LIMITATION, LOSS OFCONTENT, FEATURES, OR CAPACITY OF SERVICES; AND (II) SUBSCRIBER’S USE OF ORCONNECTION TO ANY NON-BANDWANGO SERVICES.
16) LIMITATION OF LIABILITY: NEITHER PARTY SHALL BE LIABLE FORCONSEQUENTIAL DAMAGES, LOST REVENUES OR PROFITS, COST OF CAPITAL, LOSTPRODUCTION OF PRODUCTS, FAILURE TO DELIVER PRODUCTS, LOSS OF OPPORTUNITYFOR BUSINESS WITH THIRD PARTIES, OR PUNITIVE OR EXEMPLARY DAMAGES, OR ANYOTHER INDIRECT LOSS OR DAMAGES INCURRED BY THE OTHER PARTY OR ANYAFFILIATE IN CONNECTION WITH THIS AGREEMENT, OR THE SERVICES, REGARDLESS OFWHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVEFORESEEN SUCH DAMAGES, EXCEPT TO THE EXTENT CAUSED BY SUCH PARTY’S FRAUDOR WILLFUL MISCONDUCT. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLYTO INDEMNIFICATION OBLIGATIONS OR TO ANY BREACHES OF ANY CONFIDENTIALITYOBLIGATIONS SET FORTH HEREIN. NOTWITHSTANDING ANYTHING TO THE CONTRARY INTHIS AGREEMENT, BANDWANGO’S AGGREGATE LIABILITY TO PARTNER, ANY AFFILIATE,OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR THE SERVICES, SHALL IN NO EVENT EXCEED THE FEES PAID BY PARTNER DURING THE TWELVE (12) MONTHSPRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. PARTNERACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION 16 ISTO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMITPOTENTIAL LIABILITY GIVEN THE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLYHIGHER IF BANDWANGO WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN ASSET FORTH HEREIN. BANDWANGO HAS RELIED ON THESE LIMITATIONS IN DETERMININGWHETHER TO PROVIDE PARTNER WITH THE RIGHTS TO ACCESS AND USE THE SERVICESIN THIS AGREEMENT. THE LIMITATION OF LIABILITY PROVIDED FOR HEREIN WILL APPLYIN AGGREGATE TO SUBSCRIBER AND ITS AFFILIATES AND SHALL NOT BE CUMULATIVE.
17) Suspension: Without limiting any other right, Bandwango reserves the right torestrict functionalities or suspend the Services (or any part thereof), Partner’s accountor Partner’s and/or its users’ or any end-users’ rights to access and use the Services andremove, disable or quarantine any of Partner Data if (a) Bandwango reasonably believesthat Partner or its users or end-users have violated this Agreement; or (b) Bandwangosuspects or detects any malicious software connected to Partner’s account or use of aService by Partner or its users or end-users. This right includes the removal ordisablement of Partner Data. Unless legally prohibited from doing so, Bandwango willuse commercially reasonable efforts to contact Partner directly via email to notifyPartner when taking any of the foregoing actions. Bandwango shall not be liable toPartner, its users or end-users, or any other third party for any such modification,suspension or discontinuation of Partner’s rights to access and use the Services. Anysuspected fraudulent, abusive, or illegal activity by Partner or its users or end-usersmay be referred to law enforcement authorities at Bandwango’s sole discretion.
18) Force Majeure: Any delays in performance by either party under thisAgreement shall be excused to the extent caused by occurrences beyond the control ofthe parties affected, including but not limited to, decrees of the government, acts ofGod, strikes, or other concerted acts of workers (provided Bandwango has exhausted allreasonable means, including legal recourse), fires, floods, explosion, riots, war,rebellion, and sabotage, but the foregoing shall not give rise to any claims for damagesor be considered a waiver by either party of the obligations of this Agreement. If theBandwango is delayed by an occurrence beyond its control then the Term may beextended one day for each day delayed by aforementioned act, as determinednecessary by Partner.
19) Entire Agreement; Amendment: This Agreement expresses the full andcomplete understanding of the parties with respect to the subject matter hereof andsupersedes all prior or contemporaneous proposals, agreements, representations andunderstandings, whether written or oral, with respect to the subject matter. ThisAgreement shall not limit any rights that either party may have under trade secret,copyright, patent or other laws that may be available. This Agreement may not bemodified or amended except by a writing that explicitly refers to the amendment of thisAgreement and that is signed by authorized representatives of both parties.Notwithstanding the foregoing, the written proposal from Bandwango and discussionsheld in connection therewith shall be admissible in construing the scope of thisAgreement should a dispute arise between the Parties in connection therewith.
20) Dispute Resolution: Claims, Mediation, and Arbitration: Any claim arisingout of or related to the Agreement, except those waived as provided for herein, shall besubject to mediation as a condition precedent to arbitration or the institution of legal orequitable proceedings by either party. Prior to engaging in mediation or arbitration, theparties shall, within ten (10) days of notice of the claim, meet and attempt in good faithto resolve the dispute. If the dispute is not resolved informally, then the parties shallproceed as set forth herein. The parties shall endeavor to resolve their claims bymediation which, unless the parties mutually agree otherwise. Request for mediationshall be led in writing with the other party to the Agreement and with the AmericanArbitration Association (AAA), unless another mediator is mutually agreed upon. Therequest may be made concurrently with the filing of a demand for arbitration but, insuch event, mediation shall proceed in advance of arbitration or legal or equitableproceedings, which shall be stayed pending mediation for a period of sixty (60) daysfrom the date of filing, unless stayed for a longer period by agreement of the parties orcourt order. The parties shall share the mediator’s fee and any filing fees equally. Themediation shall be held in the place where the Project is located, unless another locationis mutually agreed upon. Agreements reached in mediation shall be enforceable assettlement Agreements in any court having jurisdiction thereof. Claims not resolved bymediation shall be decided by arbitration which, unless the parties mutually agreeotherwise, shall be in accordance with the Commercial Arbitration Rules of the AAAcurrently in effect. The demand for arbitration shall be filed in writing with the otherparty and with the AAA, unless a different arbitrator is mutually agreed upon. Anyarbitrator shall have reasonable experience (but not less than 5 years) in the area ofinformation technology-related agreements and issues, and shall possess sufficientexperience in large, complex commercial disputes to serve a useful role as arbitratorwith respect to disputes arising under this Agreement. A demand for arbitration shall bemade by Bandwango within thirty (30) days of Partner’s rejection of a claim, and inother cases within a reasonable time after the claim has arisen, and in no event shall itbe made after the date when institution of legal or equitable proceedings based on suchclaim would be barred by the applicable statute of limitations. The party filing a noticeof demand for arbitration must assert in the demand all claims then known to that partyon which arbitration may be demanded. The award rendered by the arbitrator(s) shallbe final and judgment may be entered upon it in accordance with applicable law in anycourt having jurisdiction thereof.
21) Term; Termination: This Agreement is effective for a term of 12 monthsbeginning upon execution of this Agreement (the “Term”). Thereafter, the Term willautomatically be extended for additional 12 month periods unless either party provideswritten notice of its intent not to renew no less than 30 days prior to expiration of thethen-current Term. In the event of a material breach of this Agreement, the non-breaching party shall notify the breaching party both in writing and via email to theappropriate representative, specifying the nature of the breach and the section of thisAgreement imposing the breached obligation. If such breach is not remedied in acommercially reasonable time, the non-breaching party may immediately terminate thisAgreement upon notice to the breaching party. In addition to such termination, theterminating party shall have all other rights and remedies available at law or in equity. The following provisions shall survive any expiration or termination of this Agreement:Sections 4, 5, 7-13, and 15-26.
22) Assignment: This Agreement, or any right or interest under this Agreement,shall not be assigned, nor shall any work or obligation to be performed under thisAgreement be delegated, voluntarily, by operation of law or otherwise, without theparties’ prior written consent. Any attempted assignment in contravention of thisSection shall be void and ineffective. The terms of this Agreement shall be binding uponand inure to the benefit of and be enforceable by the permitted respective successorsand assigns of the parties hereto.
23) Attorney’s Fees: If any action at law or in equity is brought to enforce orinterpret the provisions of this Agreement, the prevailing party in such action shall beawarded its attorneys’ fees and costs incurred.
24) Relationship of the Parties: The Parties are independent contractors. ThisAgreement does not create a partnership, franchise, joint venture, agency, fiduciary oremployment relationship between the Parties. Nothing herein shall prevent Bandwangofrom entering into any further agreements or business relationships, nor preventBandwango from conducting similar business with others as long as Bandwangoobserves its obligations under this Agreement.
25) Export Compliance and Use Restrictions: The Services or components of theServices that Bandwango may provide or make available to Partner and its users maybe subject to U.S. export control and economic sanctions laws. Partner agrees to complywith all such laws and regulations as they relate to access to and use of the Services,and such other components by Partner and its users. Partner shall not access or use theServices if Partner are located in any jurisdiction in which the provision of the Services,or other components is prohibited under U.S. or other Applicable Laws (a “ProhibitedJurisdiction”) and Partner shall not provide access to the Services to any government,entity, or individual located in any Prohibited Jurisdiction. Partner represents, warrantsand covenants that (i) Partner is not named on any U.S. government list of persons orentities prohibited or restricted from receiving U.S. exports, or transacting with any U.S.person, (ii) Partner is not a national of, or a company registered in, any ProhibitedJurisdiction, (iii) Partner shall not permit its users to access or use the Services inviolation of any U.S. or other applicable export embargoes, prohibitions or restrictions,and (iv) Partner shall comply with all Applicable Laws regarding the transmission oftechnical data exported from the United States and the country in which Partner and itsusers are located.
26) Miscellaneous: None of the provisions of this Agreement shall be deemed tohave been waived by any act, omission, or acquiescence on the part of a party withouta written instrument signed by such party. No waiver by a party of any breach shall beeffective unless in writing, and no waiver shall be construed as a waiver of anysucceeding breach, whether or not of the same or a different term or condition. ThisAgreement shall be construed as to its fair meaning and not strictly for or against eitherparty. Headings herein are descriptive only and not to be construed in interpreting theprovisions hereof. This Agreement may be signed in counterparts, which together shallconstitute one agreement. If this Agreement is signed in counterparts, no signatoryhereto shall be bound until both parties named below have duly executed, or caused to be duly executed, a counterpart of this Agreement. The person signing on behalf ofeach party represents that he or she has the right and power to execute thisAgreement.