TERMS OF SERVICE

 

These Terms of Service constitute an agreement (this “Agreement”) for the provision of Cloud Services by Loopz Technologies, Inc., a Delaware corporation (“Loopz”), and any person or entity opening an online account with Loopz (“Customer”)(Loopz and Customer, each a “Party” and collectively “Parties”) as specified in the customer information provided by Customer to Loopz in the Customer Order for the purpose of obtaining Cloud Services as a technology solution to aid Customer in managing its Gift Card Program. This Agreement is effective as of the date Customer clicks “Accepted and Agreed To” or a similar button in the process of opening an online account with Loopz (the “Effective Date”). Customer’s use of and Loopz’s provision of the System and Cloud Services are governed by this Agreement.

 

  1.  DEFINITIONS. The following capitalized terms shall have the following meanings whenever used in this Agreement.

    1. “Additional Services” has the meaning ascribed to it in Section 2.4 hereof.

    2. “Additional Fees” has the meaning ascribed to it in Section 3.1 hereof.

    3. “Aggregate Data” has the meaning ascribed to it in Section 4.7 hereof.

    4. “AUP” means Loopz’s acceptable use policy and/or General Terms of Use governing the use of the Website by End Users as currently posted at https:loopz.io/AUP.

    5. “Cloud Services” means such software as a service (SAAS) for the management of closed loop payment management services in connection with Customer’s Gift Card Program as Loopz may provide from time to time via the System to retail merchants which issue stored-value gift cards customers on a subscription basis.

    6. “Confidential Information” has the meaning ascribed to it in Section 7.

    7. “Customer Data” means data in electronic form inputted into or collected through the System by or from Customer, including without limitation by Customer’s End Users.

    8. “Customer Order” means an order for access to the System and subscription to Cloud Services entered by Customer through Loopz’s online registration process on the Website or executed by Customer by means of a form of Customer Order provided by Loopz, and acknowledged by such Customer (including through a click-to-agree online process or electronically-signed document exchange).

    9. “Documentation” means Loopz's standard manual related to use of the System, as well as any additional documentation provided to Customer in connection with this Agreement.

    10. “End User” means any individual who was issued a Gift Card by Customer pursuant to the Gift Card Program with a fixed stored value for the purpose of using such Gift Card as means of payment for Customer’s goods and/or services.

    11. “Excluded Data” has the meaning ascribed to it in Section 4.6 hereof.

    12. “Feedback” has the meaning ascribed to it in Section 6.2 hereof.

    13. “Gift Card” means a prepaid (stored value, closed loop) gift card issued by Customer to End Users solely to be used as means of payment for the purchase of Customer’s goods and/or services and for no other purpose.

    14. “Gift Card Program” has the meaning ascribed to it in Section 2.1 hereof.

    15. “Mobile App” has the meaning ascribed to it in Section 2.3 hereof.

    16. “Privacy Policy” means Loopz’s privacy policy, currently posted at https://www.loopz.io/privacy-policy.

    17. “System” means Loopz’s proprietary online platform, which includes application software, system software and other hardware and software components, designed for managing closed loop payment systems by the issuers of merchants’ prepaid (stored value) gift cards and other means of payment.  

    18. “System Fees” has the meaning ascribed to it in Section 3.1 hereof.

    19. “Term” is defined in Section 11.1 below.

    20. “Website” means the website owned and operated by Loopz at https://loopz.io.

  2.      THE SYSTEM

    1. Gift Card Program.  Subject to the terms and conditions of this Agreement and performance of Customer’s obligations set forth herein, Loopz will use reasonable commercial efforts to provide the Cloud Services to Customer during the Term in connection with the operation and administration by Customer of a Customer’s program offering the use of Customer-issued Gift Cards (the "Gift Card Program") to  Customer’s End Users enrolled in the Gift Card Program.  Customer will operate the Gift Card Program to offer its End Users an option to pay for the products and/or services of Customer using Gift Cards issued by Customer and to use certain designated portions of the Website for monitoring End Users’ Gift Card accounts and certain other purposes.  Customer may download the Mobile App to its compatible hand-held devices, which will provide Customer with certain administrative functionality with respect to the Gift Card Program as set forth in Section 2.3 hereof.

    2. Use of the System. During the Term and provided that this Agreement has not been terminated by either Party, and in consideration of the payment of the System Fees, Customer may access and use the System through the Mobile App pursuant and subject to: (a) the terms of any outstanding Customer Order, including such features and functions as the Customer Order provides and any limitations on the number of End Users, data volume and capacity as the Customer Order imposes; and (b) AUP and Loopz’s other policies posted on its Website, as such policies may be updated from time to time.

    3. Mobile App. Customer may use the System to manage the Gift Card Program with respect to each Gift Care issued by Customer to its End User using the mobile software application developed by Loopz (“Mobile App”) which Customer may download from the Google Play Store onto its compatible Android device or via a compatible internet browser using the Website.  The Mobile App will enable Customer to perform transactions with a Gift Card holder's card, including setting up a new End User account, checking the balance of an End User’s Gift Card, viewing invoices issued to End Users generated by Customer, searching End Users and Gift Card transactions and such other functionality as may be provided by Loopz from time to time.

 

    1. Additional Services.  Loopz will provide additional services to Customer, as may be selected by Customer in Customer Order and paid for by Customer (“Additional Services”) in connection with the creation of a Gift Card Program, including graphic art services related to the development of a card design, placement of orders for Gift Cards with a third party supplier, onboarding processes to enroll an End User in Customer’s Gift Card Program and provisioning the Gift Card (creating an account for an End User in the System with a balance of funds and embedding the account details onto the End User’s Gift Card).

 

    1. Access by End Users.  End Users will be permitted remote access to certain features of the Website accessible to such End Users with such functionality as enabled by Customer for its End Users through a password-protected log-in page for the limited purpose of managing their Gift Card accounts and monitoring their Gift Card balances in compliance with the rules and procedures established by Customer, AUM and applicable law.  

    2. Documentation: Customer may reproduce and use the Documentation solely as necessary to support its use of the System for the purpose of obtaining Cloud Services.

    3. System Revisions. Loopz may revise Mobile App and System features and functions at any time, including without limitation by removing such features and functions. If any such revision to the System materially reduces features or functionality provided pursuant to a Customer Order, Customer may within 30 days of notice of the revision terminate such Customer Order, without cause, or terminate this Agreement without cause if such Customer Order is the only one outstanding.

    4. Gift Card Program Management.  Any changes to the End User’s Gift Card account which may be made by Customer using the System, including without limitation crediting/debiting Gift Card balances, enrolling/onboarding new End Users, accepting payments from End Users, blocking or cancelling Gift Cards and otherwise managing End Users’ accounts opened with Customer, shall be at the sole discretion and risk of Customer. Customer hereby acknowledges that Loopz is acting solely as a provider of Cloud Services to Customer and that any action or omission on the part of Customer with respect to End Users in using the System is Customer’s sole responsibility. Any disputes with respect to Customer’s services to its End Users and End Users’ claims with respect to any outstanding balances on their Gift Cards shall be between an End User and Customer.

    5. End User’s Payments.  Customer’s End Users may use such payment processor or solution as Customer may specify in order to transfer funds to their Gift Cards and to pay Customer-imposed fees and charges.  Loopz will not be responsible for such transfers or remittances.

  1.    FEES

  1. Fees.  Customer shall pay Loopz the periodic subscription fees for the access to and use of the System (“System Fees”) in accordance with the schedule of System Fees which are posted on the Website for the relevant Cloud Services from time to time, unless otherwise agreed by means of an executed Customer Order, and such one-time fees for the Additional Services (“Additional Fees”) as Customer selects in the Customer Order (System Fees and Additional Fees together, the “Fees”) during each Term. System Fees are dependent on the number of active End Users, transactions, workflows, length of the Term, data volume and such other capacity limitations as may be stated in the schedule of System Fees on the Website or in the Customer Form, if applicable.

  2. Payment of Fees.  Customer authorizes Loopz to charge an amount equal to the amount of the System Fees on a monthly or other periodic basis and the aggregate amount of the applicable Additional Fees, as set forth in the Customer Order, to the credit card and/or bank account specified in the Customer Order in advance of provision of services to Customer by means of automatic debit or credit card charge or via ACH bank transfer for the duration of each Term. Customer hereby agrees to keep such valid credit card and/or bank account in effect with sufficient credit limit to enable Loopz to charge the Fees every month or such other period of each Term, as applicable, and not to challenge such charges or to request reversal of such charges. Loopz will not be required to refund the Fees under any circumstances.

  3. Taxes. All Fees are exclusive of, and Customer is responsible for, applicable federal or national, state or provincial, or local sales, use, excise, export or other applicable taxes, except for taxes on the net income of L oopz. Loopz may add any such taxes to the applicable Fees.

 

  1. CUSTOMER DATA & PRIVACY

    1. Use of Customer Data. Unless it receives Customer’s prior written consent, Loopz: (a) shall not access, process, or otherwise use Customer Data other than as necessary to operate and facilitate the Mobile App and the System, to provide Cloud Services to Customer and to improve Customer’s experience on the System; and (b) shall not intentionally grant any third party access to Customer Data other than for the purposes of providing the Cloud Services and operating the System. Notwithstanding the foregoing, Loopz may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Loopz shall give Customer prompt notice, if permitted by applicable law, of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.

    2. Privacy Policy. The Privacy Policy applies only to the System and does not apply to any third party website or service linked to the System or recommended or referred to through the System or by Loopz’s staff.

    3. Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the System, Customer assumes such risks. Loopz offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third Parties.

    4. Data Accuracy. Loopz shall have no responsibility or liability for the accuracy of data uploaded to the System by Customer, including without limitation Customer Data and any other data uploaded by End Users.

    5. Data Deletion. Loopz may permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated for 30 days or more.

    6. Excluded Data. Customer represents and warrants that Customer Data does not and will not include, and Customer has not and shall not upload or transmit to Loopz's computers, servers, network or other media, any data that is subject to heightened security requirements as a result of Customer’s internal policies or practices or by law or regulation (examples include but are not limited to the Health Insurance Portability and Accountability Act (HIPAA), the Gramm–Leach–Bliley Act (GLBA), Family Educational Rights and Privacy Act (FERPA), etc. (the "Excluded Data Laws"))(such Customer Data collectively, “Excluded Data”). CUSTOMER RECOGNIZES AND AGREES THAT: (a) LOOPZ HAS NO LIABILITY FOR ANY FAILURE TO PROVIDE PROTECTIONS SET FORTH IN THE EXCLUDED DATA LAWS OR OTHERWISE TO PROTECT EXCLUDED DATA; AND (b) LOOPZ’S SYSTEMS, INCLUDING THE SYSTEM, ARE NOT INTENDED FOR MANAGEMENT OR PROTECTION OF EXCLUDED DATA AND MAY NOT PROVIDE ADEQUATE OR LEGALLY REQUIRED SECURITY FOR EXCLUDED DATA.

 

    1. Aggregate and Anonymized Data. Notwithstanding the provisions above of this Article 4, Loopz may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion.  “Aggregate Data” refers to Customer Data with the following removed: personally identifiable information and the names and addresses of Customer and any of its End Users.

 

  1.      CUSTOMER’S RESPONSIBILITIES AND RESTRICTIONS

    1. Acceptable Use. Customer shall comply and cause its End Users to comply with the AUP. Customer shall not: (a) use the System for service bureau or time-sharing purposes or in any other way allow third Parties, including Customer’s affiliates, to exploit the System; (b) provide System passwords or other log-in information to any third party; (c) share non-public System features or content with any third party; or (d) access the System in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the System, or to copy any ideas, features, functions or graphics of the System. In the event that it suspects any breach of the requirements of this Section 5.1, including without limitation, by End Users, Loopz may suspend Customer’s access to the System without advanced notice, in addition to such other remedies as Loopz may have. Neither this Agreement nor the AUP requires that Loopz take any action against Customer or any End User or other third party for violating the AUP, this Section 5.1, or this Agreement, but Loopz is free to take any such action it sees fit.

    2. Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access to the System, including without limitation by protecting its passwords and other log-in information. Customer shall notify Loopz immediately of any known or suspected unauthorized use of the System or breach of its security and shall use best efforts to stop said breach.

    3. Compliance with Laws. In its use of the System and operation of Customer’s Gift Card Program, Customer shall comply with all applicable laws and regulations, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Customer Data and operation of the Gift Card Program, including without limitation, the Credit Card Accountability, Responsibility and Disclosure Act of 2009.

    4. End Users & System Access. Customer is responsible and liable for: (a) End Users’ use of the System, including without limitation unauthorized End User conduct and any End User conduct that would violate the AUP or the requirements of this Agreement applicable to Customer; and (b) any use of the Gift Cards by End Users, whether authorized or unauthorized.

  2.      INTELLECTUAL PROPERTY AND FEEDBACK.

    1. IP Rights to the System. Loopz retains all right, title, and interest in and to each of the Mobile App and the System, including without limitation all software, system software and applications used to provide the Mobile App and the System, including any source code, updates, improvements, enhancements, modifications or derivative works thereof, whether or not patentable, and all inventions, content, graphics, media, user interfaces, logos, and trademarks and service marks contained in, displayed, performed or reproduced through the System. This Agreement is an agreement for services and does not grant Customer any intellectual property license or rights in or to the Mobile App, the System or any of its components. Customer understands and agrees that the Mobile App, the System and their respective components are protected by copyright and other U.S. and international laws.

    2. Feedback. Loopz has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Customer or End Users may provide to Loopz, and nothing in this Agreement or in the Parties’ dealings arising out of or related to this Agreement will restrict Loopz’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the End User in question. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of the Mobile App, the System or Loopz’s products or services.)

  3.     CONFIDENTIAL INFORMATION.

    1. “Confidential Information” refers to the following items Loopz discloses to Customer: (a) any document Loopz marks “Confidential”; (b) any information Loopz orally designates as “Confidential” at the time of disclosure, provided Loopz confirms such designation in writing within seven (7) business days; (c) the Documentation, this Agreement, Customer Order, the Customization Services Addendum, Statements of Work and any communications between Loopz and Customer in relation to this Agreement or the Customization Services Addendum, whether or not marked or designated confidential; and (d) any other nonpublic, sensitive information disclosed by Loopz, whether or not marked or designated “Confidential.” Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Customer’s possession at the time of disclosure; (ii) is independently developed by Customer without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Customer’s improper action or inaction; or (iv) is approved for release in writing by Customer.

    2. Nondisclosure. Customer shall not use Confidential Information for any purpose other than the use of the System for its ordinary internal business purposes (the “Purpose”). Customer: (a) shall not disclose Confidential Information to any employee or contractor of Customer unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Customer with terms no less restrictive than those of this Article 7; and (b) shall not disclose Confidential Information to any other third party without Loopz’s prior written consent. Without limiting the generality of the foregoing, Customer shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Customer shall promptly notify Loopz of any misuse or misappropriation of Confidential Information that comes to Customer’s attention. Notwithstanding the foregoing, Customer may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Customer shall give Loopz prompt notice of any such legal or governmental demand and reasonably cooperate with Loopz in any effort to seek a protective order or otherwise to contest such required disclosure, at Loopz’s expense.

    3. Injunction. Customer agrees that breach of this Article 7 would cause Loopz irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Loopz will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.

    4. Termination & Return. With respect to each item of Confidential Information, the obligations of Section 7.1 above (Nondisclosure) will terminate five (5) years after the date of disclosure. Upon termination of this Agreement, Customer shall return all copies of Confidential Information to Loopz or certify, in writing, the destruction thereof.

    5. Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license ther eto. Loopz will retain all right, title, and interest in and to all Confidential Information.

  4.      REPRESENTATIONS & WARRANTIES.

    1. From Loopz. Loopz represents and warrants that it is the owner of each of the Mobile App and the System and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights granted in this Agreement without the further consent of any third party. Loopz’s representations and warranties in the preceding sentence do not apply to use of the Mobile App or the System in combination with hardware or software not provided by Loopz. In the event of a breach of the warranty in this Section 8.1, Loopz, at its own option and expense, will promptly take the following actions: (a) secure for Customer the right to continue using the Mobile App and/or the System; (b) replace or modify the Mobile App and/or the System to make it non-infringing; or (c) terminate the infringing features of the Cloud Services and refund to Customer any prepaid fees for such features, in proportion to the portion of the Term left after such termination. In conjunction with Customer’s right to terminate for breach where applicable, the preceding sentence states Loopz’s sole obligation and liability, and Customer’s sole remedy, for breach of the warranty in this Section 8.1 and for potential or actual intellectual property infringement by the Mobile App and the System.

    2. From Customer. Customer represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the System; (c) it is a corporation, limited liability company, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business in each jurisdiction where it transacts business pursuant to applicable law; and (d) has obtained all necessary authorizations, permits and licenses to operate the Gift Card Program under applicable laws.

    3. Exculpation. Customer agrees and understands that it shall retain sole responsibility and accountability for its management of the Gift Card Program and, as further consideration under this Agreement, agrees that Loopz and its and its respective affiliates’ officers, directors, managers, members, partners, employees and agents (collectively, “Released Persons”) shall have no liability to Customer or its subsidiaries, owners, members, shareholders, partners, affiliates, debt holders or creditors for any claims, liabilities, losses, damages, costs and expenses (or any action, claim, suit or proceeding in respect thereof) related to or arising out of or in connection with the Cloud Services  (whether occurring before, at or after the date of the Agreement) under this Agreement, whether or not resulting from a Related Persons’ negligence (“Losses”), except to the extent such Losses have resulted solely from the willful misconduct or bad faith of Loopz.  

    4. Warranty Disclaimers. Except as provided in Section 8.1 above, CUSTOMER ACCEPTS THE MOBILE APP AND THE SYSTEM “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) LOOPZ HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR END USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) LOOPZ DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) LOOPZ DOES NOT REPRESENT OR WARRANT THAT THE MOBILE APP OR THE SYSTEM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.

  5.      INDEMNIFICATION.

    Customer shall defend, indemnify, and hold harmless Loopz and each of the Loopz’s Associates (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to Customer's alleged or actual use of, misuse of, or failure to use the Mobile App or the System and Customer’s operation of the Gift Card Program, including without limitation: (a) claims by End Users; (b) claims, investigations, actions or proceedings of any government agencies, bodies or authorities related to the operation of the Gift Card Program by Customer; (c) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Customer Data; (d) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the System through an End User’s account, including without limitation, Customer Data; and (e) claims that Customer’s use of the System harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. Indemnified Claims include, without limitation, claims arising out of or related to Loopz’s negligence. Customer’s obligations set forth in this Article 9 include retention and payment of attorneys and payment of court costs, as well as settlement at Customer’s expense and payment of judgments. Loopz will have the right to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (The “Loopz Associates” are Loopz’s officers, directors, shareholders, subsidiaries, agents, representatives, advisors, successors, and assigns.)

  6.    LIMITATION OF LIABILITY.

    1. Dollar Cap. LOOPZ’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT OF THE FEES ACTUALLY PAID BY CUSTOMER TO LOOPZ IN A PERIOD OF TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH CUSTOMER PRESENTS A CLAIM TO LOOPZ WITH RESPECT TO LOOPZ’S BREACH OF LOOPZ’S OBLIGATIONS UNDER THIS AGREEMENT.

    2. Exclusion of Consequential Damages. IN NO EVENT WILL LOOPZ BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.

    3. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 10 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF LOOPZ IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article 10, Loopz’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Loopz’s liability limits and other rights set forth in this Article 10 apply likewise to Loopz’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.

  7.    TERM AND TERMINATION.

    1. Term. The term of this Agreement (the “Term”) shall commence on the Effective Date and continue for the initial term selected by the Customer as specified in a Customer Order.  Following its expiration, the Term will renew for successive terms equal to the initial term specified in the Customer Order, unless either Party refuses such renewal by written notice to the other Party 30 or more days before the renewal date.

    2. Termination for Cause. Either Party may terminate this Agreement or any Customer Order if the other Party: (i) fails to cure any material breach (including, without limitation, Customer's failure to pay the Fees) of this Agreement within thirty (30) days after written notice of such breach; (ii) ceases operation without a successor; or (iii) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such Party (and not dismissed within sixty (60) days thereafter).

    3. Effects of Termination. Upon termination of this Agreement, Loopz shall discontinue Customer’s access to the Mobile App and the System, and Customer shall cease all use of the Mobile App and the System and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay the Fees (unless the termination is by Customer for cause); (b) Articles and Sections 6 (IP & Feedback), 7 (Confidential Information), 8.4 (Exculpation), 8.4 (Warranty Disclaimers), 9 (Indemnification), 10 (Limitation of Liability) and 12 (Publicity); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.

  8.    PUBLICITY. In further consideration of the rights granted hereunder to Customer, Customer agrees to permit Loopz to use Customer's name and trademarks and service marks to identify Customer as a Loopz customer on the Website, in Loopz’s marketing materials and in other sales and marketing activities, provided that Customer does not notify Loopz in writing of its revocation of such permission. Customer agrees to cooperate with Loopz in reasonable publicity efforts involving the System, such as, for example, media releases and marketing materials in accordance with Loopz's reasonable request.

  9.    MISCELLANEOUS.

    1. Independent Contractors. The Parties are independent contractors and will so represent themselves in all regards. Neither Party is the agent of the other, and neither may make commitments on the other’s behalf. The Parties agree that no Loopz employee or contractor will be an employee of Customer.

    2. Notices. Loopz may send notices pursuant to this Agreement to Customer’s email contact points provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to Loopz, and such notices will be deemed received 72 hours after they are sent in writing and if delivered personally, mailed via registered or certified mail (return receipt requested and postage prepaid), given by facsimile (confirmed by certification of receipt) or sent by courier (confirmed by receipt) addressed to Loopz Technologies, Inc., 3660 Waldo Ave., Suite 4D, Bronx, NY 10463.

 

    1. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing Party’s reasonable control.

    2. Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Loopz’s express written consent. Except to the extent forbidden in this Section 13.4, this Agreement will be binding upon and inure to the benefit of the Parties’ respective successors and assigns.

    3. Severability. To the extent permitted by applicable law, the Parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.

    4. No Waiver. Neither Party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.

    5. No Third Party Rights.  Nothing in this Agreement, express or implied, is intended to or shall confer upon any person (other than the Parties), including without limitation, any End User, any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

    6. Choice of Law & Jurisdiction: This Agreement will be governed solely by the internal laws of the State of New York, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the Parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The Parties consent to the personal and exclusive jurisdiction of the federal and state courts of the County of New York, New York.

    7. Conflicts. In the event of any conflict between this Agreement and any Loopz policy posted online, including without limitation the AUP or Privacy Policy, the terms of this Agreement will govern.

    8. Headings. The section headings in this Agreement are intended solely for convenience of reference and shall be given no effect in the construction or interpretation of this Agreement.

    9. Technology Export. Customer shall not: (a) permit any third party to access or use the System in violation of any U.S. law or regulation; or (b) export any software provided by Loopz or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the System in, or export such software to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).

    10. Entire Agreement. This Agreement sets forth the entire agreement of the Parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither Party has relied upon any such prior or contemporaneous communications.

    11. Amendment.  Loopz may amend this Agreement from time to time by posting an amended version at its Website and, solely with respect to Customers, sending Customer written notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless Customer first gives Loopz written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue under its original provisions, and the amendment will become effective at the start of Customer’s next Term following the Proposed Amendment Date (unless Customer first terminates this Agreement pursuant to Article 11, Term & Termination). Customer’s continued use of the Cloud Services following the effective date of an amendment will confirm Customer’s consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each Party. Notwithstanding the foregoing provisions of this Section 13.13, Loopz may revise the Privacy Policy and AUP at any time by posting a new version of either at the Website, and such new version will become effective on the date it is posted.

 

    1. Acceptance. CUSTOMER ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS. THE PERSON ACCEPTING THIS AGREEMENT ON CUSTOMER’S BEHALF THROUGH LOOPZ’S ONLINE REGISTRATION PROCESS OR BY MEANS OF A CUSTOMER ORDER REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS AND CONDITIONS.  Customer further acknowledges that this Agreement does not have to be signed in order to be binding.  Customer will have indicated its assent to the terms of the Agreement by clicking on the "Accepted and Agreed to" (or similar button) that is presented to Customer at the time of its opening of an online account with Loopz and submitting an order for the Cloud Services through Loopz’s online registration process on the Website or by executing and transmitting to Loopz a Customer Order.