This Agreement is effective as of the date Customer clicks “I accept” or a similar button in the process of opening an online account with Buzzbassador or performs installation of the software through any of the supported platforms (the “Effective Date”). Customer’s use of and Buzzbassador’s provision of the Cloud Services and Buzzbassador System (each as defined below) are governed by this Agreement.
The following terms shall have the following meanings whenever used in this Agreement.
“Ambassador” means an individual or business entity generating its own traffic and thus rewarded by a respective Merchant with whom such Ambassador has a contractual relationship for qualified sales, leads, clicks, or other measurable action registered by Merchant on Merchant’s website.
“Ambassador Sales Revenue” means the total amount of the proceeds received from the sale of products or services by Customer acting as a Merchant and generated by Merchant’s Ambassadors as tracked back to Customer in the System. Such amount shall be net of the amounts with respect to any and all sales, property, use, value-added and similar taxes and discounts.
“Aggregate Data” has the meaning ascribed to it in Section 4.7 hereof.
“Cloud Services” means such software as a service (“SaaS”) and related services as Buzzbassador may provide from time to time to its Customers acting as Merchants with respect to one or more Ambassadors via the System, including Ambassador Sales Revenue tracking and management services for the purposes of tracking, reporting, and issuance of commission payments by Merchants to Ambassadors on a subscription basis.
“Confidential Information” has the meaning ascribed to it in Section 7.
“Customer” means: individual or business entity that is using the services provided by Buzzbassador and therefore Rocketing Systems, Inc.
“Customer Data” means data in electronic form input or collected through the System by or from Customer, including without limitation by Customer’s Users.
“Customer Order” means an order for access to the System on a subscription basis entered by Customer through Buzzbassador’s online registration process on the Shopify App Store and acknowledged by such Customer through a click-to-agree online process.
“Documentation” means Buzzbassador’s standard manual related to use of the System, as well as any additional documentation provided to Customer in connection with this Agreement.
“Excluded Data” has the meaning ascribed to it in Section 4.6 hereof.
“Feedback” has the meaning ascribed to it in Section 7.2 hereof.
“Merchant” means an e-commerce entity paying a commission, referral fee or similar compensation to an Ambassador for qualified sales or other measurable action by a visitor generated or referred to by such Ambassador to the Merchant’s website.
“Subscription Fees” has the meaning ascribed to it in Section 3.1 thereof.
“System” means Buzzbassador’s proprietary online platform designed for building and sharing software, SaaS and mobile application integrations for the Cloud Services, using the visual workflow editor or any major programming language.
“Term” is defined in Section 12.1 below.
“User” means any individual who uses the System on Customer’s behalf or through Customer’s account or passwords, whether authorized or not.
“Website” means the website owned and operated by Buzzbassador at https://buzzbassador.com OR the Shopify App Store at https://apps.shopify.com/buzzbassador where the Customer/Merchant installs Buzzbassador to their Shopify Store.
During the Term and provided that this Agreement has not been terminated by either party, and in consideration of the payment of the Subscription Fees, Customer may access the System for the purpose of using Cloud Services 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 Ambassadors; and (b) Buzzbassador’s other policies posted on its Website at buzzbassador.app, as such policies may be updated from time to time.
Customer may reproduce and use the Documentation solely as necessary to support Users’ use of the System.
Buzzbassador may revise System and Cloud Services features and functions at any time, including without limitation by removing such features and functions. If any such revision to the System or Cloud Services 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.
Customer (Merchant/Advertiser) shall pay Buzzbassador the fees for the access to the System and use of the Cloud Services (“Subscription Fees”) in accordance with the schedule of Subscription Fees which are posted on the Website for the relevant System Service from time to time or as specified in the Customer Order. Subscription Fees are dependent on the usage plan and such other capacity limitations as may be stated in the schedule of Subscription Fees on the Website or in the Customer Form, if applicable.
Customer (Merchant/Advertiser) authorizes Buzzbassador to charge an amount equal to the amount of the Subscription Fees as provided in Section 3.1 hereof on a monthly basis (unless the relevant Customer Order provides otherwise). Customer hereby agrees to keep such valid credit card and/or bank account in effect with sufficient credit limit to enable Buzzbassador to charge the Fees every month of each Term, as applicable, and not to challenge such charges or to request reversal of such charges. Buzzbassador will not be required to refund the Fees under any circumstances.
Unless it receives Customer’s prior written consent, Buzzbassador: (a) shall not access, process, or otherwise use Customer Data other than as necessary to operate and facilitate the System, to provide Cloud Services to Customer and to improve customer experience on the System; and (b) shall not grant any third party access to Customer Data, including without limitation Buzzbassador’s other customers. Notwithstanding the foregoing, Buzzbassador may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Buzzbassador 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.
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. Buzzbassador offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.
Buzzbassador 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 Users. In addition, Buzzbassador shall not be responsible or liable for any ambassador commission payment calculation errors in connection with PayPal or other online payments made in reliance on the reports generated from the use of the System or of any application programming interface keys generated by the System.
Buzzbassador may permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated for 30 days or more.
Customer represents and warrants that Customer Data does not and will not include, and Customer has not and shall not upload or transmit to Buzzbassador’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. CUSTOMER RECOGNIZES AND AGREES THAT: (a) Buzzbassador HAS NO LIABILITY FOR ANY FAILURE TO PROVIDE PROTECTIONS SET FORTH IN THE EXCLUDED DATA LAWS OR OTHERWISE TO PROTECT EXCLUDED DATA IN THE CONTEXT OF THE HEIGHTENED SECURITY MEASURES ; AND (b) Buzzbassador’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.
Notwithstanding the provisions above of this Article 4, Buzzbassador may use 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 Users, Ambassadors, end users or customers.
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 ambassadors, 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 Users, Buzzbassador may suspend Customer’s access to the System without advanced notice, in addition to such other remedies as Buzzbassador may have. This Agreement does not require that Buzzbassador take any action against Customer or any User or other third party for violating this Section 5.1 or this Agreement, but Buzzbassador is free to take any such action it sees fit. In addition, Customer shall comply with all restrictions imposed by each merchant in connection with ambassador transactions.
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 Buzzbassador 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.
In its use of the System, 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, including the General Data Protection Act
Customer is responsible and liable for: (a) Users’ use of the System, including without limitation unauthorized User conduct and any User conduct that would violate the requirements of this Agreement applicable to Customer; and (b) any use of the System through Customer’s account, whether authorized or unauthorized. Users’ consents – The customer is responsible and declare that in any case where an explicit consent for providing the services of Buzzbassador is needed by the natural person, such consents shall have been obtained BY the Merchant prior the registration in Buzzbassador website and start using its services. In any case of installment of the plug-ins of Buzzbassador the notification for using the services/for this functionality of the online store/website of the Merchant/the Customer shall be provided by the Merchant/the Customer. Buzzbassador is not responsible for any faulty given information regarding the lawfulness of the provided consent of the natural person.
The Customer herewith declares that it has adopted the appropriate technical and organizational measures including, where applicable those under the GDPR.
Ambassador acknowledge that they will use the System lawfully, Accept that all disputes about payments/tracking/transactions/Merchant’s clients are between the Ambassador and the Merchant In its use of the System, Ambassador 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, including the General Data Protection Act. Ambassador will not use any forbidden by law and abusive methods of referring visitors to the Merchant’s store Merchant or Buzzbassador may terminate the Ambassador’s account if Ambassador is not following its restrictions and/or responsibilities
Buzzbassador retains all right, title, and interest in and to the System, including without limitation all software, system software and applications used to provide 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 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 System or any of its components. Customer understands and agrees that the System and its components are protected by copyright and other laws.
Buzzbassador has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Customer or Users provide to Buzzbassador, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Buzzbassador’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the User in question. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Buzzbassador’s products or services.)
Notwithstanding anything to the contrary contained herein, Customer hereby grants to Buzzbassador a limited royalty-free license and the right during the Term to disclose, use, modify, edit, create derivative works, reproduce and display for Buzzbassador’s training, marketing, advertising, publicity and other business purposes Customer’s information, data and content associated with Customer’s Buzzbassador account and registration page, including without limitation, Customer’s ambassador program terms and other text and graphic elements supplied by Customer, provided however that Buzzbassador will remove specifically identifiable information, such as individual names, office addresses, email addresses and order numbers, therefrom prior to sharing such Customer’s information, data and content with third parties.
(a) any document Buzzbassador marks “Confidential”; (b) any information Buzzbassador orally designates as “Confidential” at the time of disclosure, provided Buzzbassador confirms such designation in writing within seven (7) business days; (c) the Documentation, this Agreement, Customer Order, Statements of Work and any communications between Buzzbassador and Customer in relation to this Agreement, whether or not marked or designated confidential; and (d) any other nonpublic, sensitive information disclosed by Buzzbassador, 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.
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 8; and (b) shall not disclose Confidential Information to any other third party without Buzzbassador’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 Buzzbassador 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 Buzzbassador prompt notice of any such legal or governmental demand and reasonably cooperate with Buzzbassador in any effort to seek a protective order or otherwise to contest such required disclosure, at Buzzbassador’s expense.
Customer agrees that breach of this Article 8 would cause Buzzbassador irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Buzzbassador will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
With respect to each item of Confidential Information, the obligations of Section 8.1 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 Buzzbassador or certify, in writing, the destruction thereof. Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Buzzbassador will retain all right, title, and interest in and to all Confidential Information.
Buzzbassador represents and warrants that it is the owner of 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. Buzzbassador’s representations and warranties in the preceding sentence do not apply to use of the System in combination with hardware or software not provided by Buzzbassador. In the event of a breach of the warranty in this Section 9.1, Buzzbassador, at its own option and expense, will promptly take the following actions:
(a) secure for Customer the right to continue using the System; (b) replace or modify 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 Buzzbassador’s sole obligation and liability, and Customer’s sole remedy, for breach of the warranty in this Section 9.1 and for potential or actual intellectual property infringement by the System. 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, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.
Except as provided in Section 9.1 above, CUSTOMER ACCEPTS THE SYSTEM, CLOUD SERVICES, AND ALL OTHER SERVICES “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) Buzzbassador HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) Buzzbassador DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) Buzzbassador DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.
Customer shall defend, indemnify, and hold harmless Buzzbassador, Rocketing Systems Inc., and any associates 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 System, including without limitation: (a) claims by Users or by Customer’s employees, as well as by Customer’s own customers; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Customer Data; (c) 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 Customer’s account, including without limitation by Customer Data; and (d) claims that use of the System through Customer’s account harasses, defames, or defrauds a third party or violates the any other law or restriction on electronic advertising. Indemnified Claims include, without limitation, claims arising out of or related to Buzzbassador’s negligence. Customer’s obligations set forth in this Article 10 include retention and payment of attorneys and payment of court costs, as well as settlement at Customer’s expense and payment of judgments. Buzzbassador will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations.
Buzzbassador’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT OF THE FEES ACTUALLY PAID BY CUSTOMER TO Buzzbassador IN A PERIOD OF TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH CUSTOMER PRESENTS A CLAIM TO Buzzbassador WITH RESPECT TO Buzzbassador’S BREACH OF Buzzbassador’S OBLIGATIONS UNDER THIS AGREEMENT.
IN NO EVENT WILL Buzzbassador BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
THE LIABILITIES LIMITED BY THIS ARTICLE 11 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 Buzzbassador 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 11, Buzzbassador’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Buzzbassador’s liability limits and other rights set forth in this Article 11 apply likewise to Buzzbassador’s ambassadors, licensors, suppliers, agents, directors, employees, consultants, advisors and other representatives.
The term of this Agreement (the “Term”) shall commence on the Effective Date and continue for the initial term selected by the Customer in the online registration process 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. Termination for Cause. Either party may terminate this Agreement and 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). Buzzbassador may disable links and reporting and payment functionality with respect to Ambassadors of Customer effective immediately in its sole discretion. Effects of Termination. Upon termination of this Agreement, Buzzbassador shall discontinue Customer’s access to the System and the Cloud Services and Customer shall cease all use of the System and the Cloud Services and shall promptly 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 7 (IP & Feedback), 8 (Confidential Information), 9.3 (Warranty Disclaimers), 10 (Indemnification), 11 (Limitation of Liability) and 13 (Publicity); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
In further consideration of the rights granted hereunder to Customer, Customer agrees to permit Buzzbassador to use Customer’s name and trademarks and service marks to identify Customer as a Buzzbassador’s customer on the Website, in Buzzbassador’s marketing materials and in other sales and marketing activities, provided that Customer does not notify Buzzbassador in writing of its revocation of such permission. Customer agrees to cooperate with Buzzbassador in reasonable publicity efforts involving the System, such as, for example, media releases and marketing materials in accordance with Buzzbassador’s reasonable request.
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 Buzzbassador employee or contractor will be an employee of Customer.
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.
Customer may not assign this Agreement or any of its rights or obligations hereunder without Buzzbassador’s express written consent. Except to the extent forbidden in this Section 14.4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
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.
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. Choice of Law & Jurisdiction This Agreement will be governed solely by the local laws.
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. EU/EEA and Switzerland Data Processing. To the extent that Buzzbassador processes any Personal Data as part of Customer Data that is subject to the General Data Protection Regulation (the “GDPR”), on Customer’s behalf, in the provision of the services hereunder, the terms of the Buzzbassador Data Processing Agreement, which are hereby incorporated by reference, shall apply. For customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission, attached to the Data Processing Agreement, with Buzzbassador, which provide adequate safeguards with respect to the personal data processed by us under this Agreement and pursuant to the provisions of our Data Processing Agreement apply.
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 Buzzbassador’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 “I accept” (or similar button) that is presented to Customer at the time of its opening of an online account with Buzzbassador and submitting an order for the Cloud Services through Buzzbassador’s online registration process on the Website.