Terms & Conditions
THIS AGREEMENT APPLIES TO (1) ALL SUBSCRIPTIONS FOR FRESHLIME HOSTED SOFTWARE AS A SERVICE (SAAS) SOLUTIONS (INCLUDING BUT NOT LIMITED TO WEB-BASED AND MOBILE INSIGHTS, CUSTOMER RETENTION, AND MARKETING AUTOMATION SOFTWARE SOLUTIONS FOR BUSINESSES, MARKETERS OR OTHERS) AND (2) ANY OTHER RELATED SERVICES THAT FRESHLIME MAY PROVIDE TO YOU IN CONNECTION WITH SUCH SAAS SOLUTIONS.
PLEASE READ THE AGREEMENT CAREFULLY BEFORE CONTINUING YOUR SUBSCRIPTION REGISTRATION. BY CLICKING THE “I ACCEPT” BUTTON OR OTHERWISE ACCEPTING THIS AGREEMENT AS SET FORTH IN ANY ONLINE OR PRINTED ORDER FORM REFERENCING THIS AGREEMENT, YOU AND ANY COMPANY YOU REPRESENT AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF YOUR COMPANY, YOU ARE REPRESENTING TO US THAT YOU HAVE THE AUTHORITY TO BIND YOUR COMPANY TO THIS AGREEMENT, AND THE TERM “YOU” SHALL REFER TO YOUR COMPANY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST CHOOSE THE “CANCEL” BUTTON AND YOU SHALL NOT BE PERMITTED TO USE THE FRESHLIME SERVICE.
- Agreement to Provide Services. Subject to the terms and conditions of these Terms of
Service and during the term of these Terms of Service, FreshLime will provide to Merchant access to the Services purchased through and described on the FreshLime website at and its sub domains (the “FreshLime Site”), or purchased through a Reseller, and in accordance with any applicable Purchase Order(s). Merchant’s Services start on the date of the initial charge to create the account (the “Initial Charge”). Merchant understands and agrees that by using the on-line registration process or other registration process and consenting to the terms of these Terms of Service Merchant has made a binding selection of the type of Services to be provided and all associated specifications, prices, policies and documentation related to the delivery of the Services.
- Subscription Order. Each Subscription Order is hereby incorporated into these Terms of
Service by this reference and is subject to the terms and conditions of these Terms of Service; provided, however, that in the event of conflict with the terms contained in any Subscription Order, the terms contained in these Terms of Service shall control. In the
event of any conflict between the terms of these Terms of Service or a Subscription Order and any Merchant-issued order form or purchase order, the terms of these Terms of Service and the applicable Subscription Order shall control.
- Content. As a registered user, you may submit content to the Services. You are solely
responsible for any content that you upload, publish, display, or link to on or through the Services, or transmit to or share with other users (“User Content”). We have no ability to control User Content posted on the Services, but we reserve the right to modify or remove, at our discretion, any User Content posted by you to the Services. By posting User Content to any part of the Services you represent and warrant that you have obtained the necessary rights to post such User Content and such posting does not infringe any third party’s rights. You may remove your User Content from the Services at any time. You shall retain all of your ownership rights in your User Content; however, you hereby grant to us a worldwide, irrevocable, royalty-free, nonexclusive, sub- licensable license to use, reproduce, distribute, display, perform, create derivative works of, transmit, distribute, and publish all content and materials you provide to us for any purpose, including for the Services or other websites, and for making your content and materials available in any medium now known or later developed.
- Customer Management. If Merchant has agreed to FreshLime tracking their customer
Interactions, FreshLime will record and display back to Merchant the customers’ Interactions with the Merchant. These Interactions may include but are not limited to: date of interaction, transaction amount, customer name, customer phone number, customer email address, and ways that the customer has interacted with the merchant. If Merchant has subscribed customers to its marketing mailing list, FreshLime will send its customers emails and SMS text messages on behalf of the Merchant. SMS messages will only be sent to customers who have chosen to opt in to SMS text marketing. The Merchant has the option to remove customers from its marketing mailing list at any time, including removing all customers from the mailing list. Contact FreshLime at (801)653- 5600 to make changes to your subscription or to change the features in your account.
- Phone forwarding service. If Merchant has enabled the Phone forwarding service,
FreshLime will provide the Merchant with a phone number that forwards to a phone number chosen by the Merchant. FreshLime will also publish the forwarding number to FreshLime-managed marketing materials, emails, directory listings, or other websites. Upon termination, Merchant is responsible for ensuring that the forwarding number is removed and replaced on all marketing materials, emails, directory listings, or other websites and any other places where it is listed and FreshLime is under no obligation to continue renting, or otherwise supporting, the forwarding number.
6. Transaction processing service. If Merchant has enabled the Transaction processing
service, FreshLime will process the Merchant’s credit card transactions. This service does not require a change in the Merchant’s credit card processing system in most cases; in situations that do, FreshLime may provide a new credit card payment processing device.
- Stripe. Payment processing services for business owners on FreshLime are provided by
Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to FreshLime’s terms and conditions or continuing to collect payments from your customers through FreshLime, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of FreshLime enabling payment processing services through Stripe, you agree to provide FreshLime accurate and complete information about you and your business, and you authorize FreshLime to share it and transaction information related to your use of the payment processing services provided by Stripe.
- MODIFICATIONS TO THESE TERMS OF SERVICE
- Subject to the terms and conditions of these Terms of Service, FreshLime grants to Merchant a non-exclusive, non-transferable, revocable license during the Term (as defined in Section 12), without the right to sublicense, to (i) use the software and other technology supplied by FreshLime to enable Merchant to receive or access the Services
(the “FreshLime Platform”) solely for the purposes of accessing and using the Services; and (ii) use the FreshLime Documentation in connection with the Merchant’s use thereof. Except for the limited licenses granted hereunder, FreshLime reserves all rights not expressly granted and no such additional rights may be implied.
- Ownership. Merchant acknowledges that (i) all right, title and interest in and to the
Services, including the FreshLime Platform and FreshLime Documentation therein, and all patents, copyrights, trade secrets, trademarks, trade names, service marks, slogans, logos, other trade-identifying symbols and other proprietary rights embodied therein or associated therewith, are and shall remain with FreshLime or its third party licensors; (ii) no right or interest in the Services or the FreshLime Platform is conveyed other than the limited licenses granted herein; (iii) the Services, the FreshLime Documentation and the FreshLime Platform are protected by copyright and other intellectual property laws; and (iv) FreshLime asserts that the Services, the FreshLime Documentation and the FreshLime Platform embody valuable confidential and secret information of FreshLime or its licensors, the development of which required the expenditure of considerable time and money.
- No Modification. Merchant agrees that Merchant shall not (i) modify or alter the FreshLime Platform; (ii) create derivative works of the FreshLime Platform; (iii) decompile, disassemble, decode or reverse engineer the FreshLime Platform, translate the FreshLime Platform or otherwise attempt to learn the source code, structure, algorithms or internal ideas underlying the FreshLime Platform or reduce the FreshLime Platform by any other means to a human perceivable form; or (iv) bypass, delete or disable any copy protection mechanisms or any security mechanisms.
- License to Merchant Marketing Content. In connection with the Services ordered via
an applicable Subscription Order, Merchant grants FreshLime and Third-Party Partner Site(s) a non-exclusive, transferable, royalty-free license during the Term to use Merchant’s trademarks, trade names, service marks, slogans, logos, other trade- identifying symbols and all other marketing or promotional content provided by Merchant to FreshLime (“Merchant Marketing Content”) in connection with the advertising, promotion and sale of Merchant’s products, services or business, and to sublicense such Merchant Marketing Content to third parties in connection with the provision of such Services. Merchant acknowledges that Coupons posted on Third-Party Partner Site(s) may not carry the FreshLime trademark or branding. Merchant further acknowledges and agrees that FreshLime or its sublicenses may modify Merchant Marketing Content in order to effectively provide the Services ordered in FreshLime’s reasonable discretion, provided that none of such modifications shall materially alter the terms of any Coupon without Merchant’s prior written consent.
5. Non-Assertion of Claims. During and after the term of these Terms of Service,
Merchant will not assert, nor will Merchant authorize, assist, or encourage any third party to assert, against FreshLime or any related party, any patent infringement or other intellectual property infringement claim with respect to the FreshLime Platform, FreshLime Documentation or the Services.
- In the event Merchant elects, in connection with any of the Services, to communicate to
FreshLime (either directly or through a Reseller) suggestions for improvements to the Services (“Feedback”), FreshLime shall be entitled to use the Feedback without restriction and Feedback will not be treated as confidential to Merchant. Merchant hereby grants to FreshLime a royalty-free, sub licensable, transferable, perpetual, irrevocable worldwide license in and to the Feedback to use in any manner related to the operation of its business. In addition, FreshLime hereby disclaims any and all liability for any comments, drawings, depictions, audio clips or other content made available on the FreshLime Site by Merchants of the FreshLime Site generally (“Comments”). Further FreshLime (i) shall have a royalty-free, sub licensable, transferable, perpetual, worldwide, irrevocable license in and to such Comments to use in any manner related to the operation of its business, and (ii) reserves the right to remove any such Content from the FreshLime Site immediately in its sole discretion.
- FEES AND BILLING
- In consideration for the provision of Services to Merchant, Merchant will pay to
FreshLime, or if Merchant purchases a right to use the Service from a Reseller, then Merchant will pay to such Reseller, all Services fees (“Fees”) due in advance according to the Subscription Order. Charges are exclusive of all applicable taxes, which may be billed to Merchant in addition to the Fees. FreshLime or Reseller will provide Merchant fifteen (15) days advance notice for any increase in fees or addition of new fees for any existing Services. Merchant’s continued use of the Services after a fee increase will constitute Merchant’s agreement to the increase in service fees.
- Billing, Invoicing and Payment Terms. FreshLime, or if applicable, the Reseller, will
charge Merchant’s credit card provided in the Subscription Order the Fees for the Services rendered in advance for each billing period on or after the first day of such billing period. If Merchant is paying by credit card, (a) Merchant hereby irrevocably authorizes FreshLime, or if applicable, the Reseller, to charge the credit card or other payment method provided for any such amounts when due, (b) amounts due will be automatically charged, in advance, and (c) if Merchant’s credit card expires, Merchant hereby gives FreshLime, or if applicable, the Reseller, permission to submit the credit card charge with a later expiration date. All billing disputes must be emailed to
ap@FreshLime.com within fifteen (15) days of delivery of the billing statement, and disputes not made within that time are waived by Merchant. Late payments resulting from credit card declines that the Merchant have attempted to follow up on hereunder will accrue interest at a rate of one and one-half percent (1 1/2 %) per month, or the highest rate allowed by applicable law, whichever is lower. FreshLime, or if applicable, the Reseller, reserves the right to have Merchant complete a credit application to determine Merchant’s creditworthiness as a condition of receiving further Services. If FreshLime, or if applicable, the Reseller, must initiate a collections process to recover Fees due and payable hereunder, then FreshLime, or if applicable, the Reseller, shall be entitled to recover from Merchant all costs associated with such collections efforts, including but not limited to reasonable attorney’s fees. In the event FreshLime, or if applicable, the Reseller, delivers to Merchant an invoice for any Fees or interest payments owed hereunder, such invoiced amounts shall be due within fifteen (15) days of the date of such invoice.
In the event an account is past due and Merchant requests to cancel per Section 12, Merchant is required to pay for the 30 days of service from their initial bill date decline.
- USE OF THE SERVICE
- Communications. Merchant is responsible for obtaining and maintaining all of the
appliances, hardware, software and services that Merchant may need to access and use the Services. Without limiting the foregoing, Merchant must obtain and maintain, and pay all charges, taxes and other costs and fees related to, Internet access, telephone, computer, and other equipment, and any communications or other charges incurred by Merchant to access and use the Services.
- Customer Management. While FreshLime will make every effort to ensure that email and SMS Text marketing messages sent on behalf of Merchant comply with Telephone Consumer Protection Act (TCPA) and the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Acts, Merchant assumes full responsibility for ensuring that marketing messages are only sent to those who are legally eligible to receive them. Merchant’s obligations with respect to customer management include those more fully described in Section 5.7 below.
- Passwords. Merchant is responsible for protecting and safeguarding any keys,
certificates, passwords, access codes, Merchant IDs or other credentials and login information (collectively, “Passwords”) that have been provided to Merchant or that are generated in connection with Merchant use of the Services. Merchant will not disclose or make available any Passwords other than to Merchant authorized employees and shall use all commercially reasonable efforts to prevent unauthorized access to, or use of, the Passwords or the Services. Merchant is solely and fully responsible for all activities that
occur in connection with Merchant’s Passwords. Without limiting the foregoing, Merchant is responsible for all charges and liabilities applicable to data and information transmitted to and stored under Merchant’s account on the Services. In the event Merchant believes the Passwords have been compromised, Merchant is solely responsible for notifying FreshLime immediately by email to support@FreshLime.com and phone call to (801) 653-5600.
- Downtime. Merchant acknowledges that Merchant’s access to and use of the Services
may be suspended for the duration of any scheduled or unscheduled downtime or unavailability of any portion or all of the Services for any reason, including as a result of power outages, system failures or other interruptions, or any other acts, omissions or failures on the part of FreshLime.
- Suspension, Limitation or Termination. FreshLime shall be entitled, without liability
to Merchant, to immediately suspend, terminate or limit Merchant’s access to the Services at any time in the event (i) that FreshLime determines that the Services is being used in violation of applicable federal, state or local law or ordinance, these Terms of Service, or any agreement applicable to the Services; (ii) that FreshLime determines that the Services are being used in an unauthorized or fraudulent manner; (iii) that FreshLime determines that the use of the Services adversely affects FreshLime’s equipment or service to others; (iv) FreshLime is prohibited by an order of a court or other governmental agency from providing the Services; (v) of a denial of service attack or any other event which FreshLime determines, in its sole discretion, may create a risk to the Services or to any other customers if the Services were not suspended; or (vi) of a security incident or other disaster that impacts the Services or the security of User Data and Customer Data. In addition, FreshLime shall have the right to immediately deny or suspend access to the FreshLime Platform or Services in the event FreshLime, or if applicable, a Reseller, is not paid any amount due in connection with the Services or Merchant’s breach or alleged breach of these Terms of Service. Without limiting the generality of Section 5, FreshLime shall have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of Merchant‘s right to use the Services in accordance with these Terms of Service.
- Prohibited Activities. Merchant may not use the Services (i) in violation of these Terms
of Service, including usage that exceeds storage volume limits or other parameters and restrictions described on the applicable Subscription Order or on the FreshLime Site; (ii) to infringe on, violate, dilute or misappropriate the intellectual property rights of any third party or any rights of publicity or privacy; (iii) to violate any law, statute, ordinance or regulation (including but not limited to the laws and regulations governing export/import control (including the Export Administration Regulations, the International
Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control), unfair competition, anti- discrimination and/or false advertising); (iv) to store defamatory, trade libelous, unlawfully threatening, or unlawfully harassing data; (v) to store obscene, pornographic or indecent data in violation of applicable law; or (vi) to introduce or propagate any unauthorized data, malware, viruses, worms, Trojan horses, spyware, worms, other malicious or harmful code. Merchant may not use the FreshLime Platform or Services in any application that may involve risks of death, personal injury, property damage or environmental damage. Merchant may not interfere with or attempt to interfere with or disrupt the integrity, security, functionality or proper working of the Services or the FreshLime Platform. Merchant may not attempt to discover or use any license keys, access codes or similar information provided from time to time to FreshLime. Merchant may not attempt to discover, access, read, alter, destroy, or damage any programs, data or other information stored on or in connection with the FreshLime Platform or Services by any other party. Merchant may access the Services only through the interfaces and protocols provided or authorized by FreshLime. Merchant may not access the FreshLime Platform or Services through unauthorized means, such as unlicensed software clients. Merchant may not compile or use the FreshLime provided materials or any other information obtained through the Services or the FreshLime Platform for the purpose of direct marketing, spamming, unsolicited contacting of sellers or customers, or other impermissible advertising, marketing or other activities, including, without limitation, any activities that violate anti-spamming laws and regulations.
- No Spam; Merchant’s Obligation to Obtain Permission. Under the terms of the CAN- SPAM Act, as between FreshLime and Merchant, Merchant is the sender of emails and is obligated to follow all legal requirements applicable to the sending of emails under CAN- SPAM, including but not limited to the prohibition against sending unsolicited emails to persons with whom Merchant does not have a business relationship or who have not requested (opted-in) to Merchant’s emails (Spam). As part of its agreement to these Terms of Service, Merchant agrees to only send permission-based emails. “Permission- based” means that all recipients must have opted-in to receive email communications from Merchant. Emails sent by Merchant must include all information required by CAN- SPAM.
- HIPAA Compliance. Merchant agrees to not upload or incorporate into any customer
lists, or otherwise provide to FreshLime any protected health information of any kind within the meaning of the Health Insurance Portability and Accountability Act of 1996, as amended (HIPAA). Notwithstanding the foregoing, if Merchant is a covered entity under HIPAA, Merchant agrees to contact FreshLime at legal@FreshLime.com.
9. Changes to the Services. FreshLime has the right to change, modify, update, add to, discontinue or retire the Services and any aspect or feature thereof, including but not limited to, hours of availability, equipment needed for access or use, and the type of files that can be stored. FreshLime may provide notice of material changes to the FreshLime Platform or Services by posting them on the Site. It is Merchant’s responsibility to check the FreshLime Site periodically to inform Merchant of any changes. You understand and agree that FreshLime may need to change the telephone number(s) and/or the credit card payment processing system. You agree that FreshLime will not be liable for damages (including consequential or special damages) arising out of any such change and you hereby waive any claims with respect to any such change, whether based on contractual, tort or other grounds, even if FreshLime has been advised of the possibility of such damages.
- DATA PRIVACY
- Merchant Data. Merchant warrants that Merchant is the owner or legal custodian of, or
otherwise has the right to provide to FreshLime, all programs, data, information and other content transmitted via the FreshLime Platform and hosted through the Services, including, without limitation, the Merchant Marketing Content (collectively the “Merchant Data”) and has the full authority to transmit and store the Merchant Data through the Services. Merchant hereby authorizes the storage of Merchant Data by FreshLime through the Services that Merchant elects to transmit via the FreshLime Platform. Merchant acknowledges that Merchant bears sole responsibility for adequate security, protection and backup of Merchant’s User Data on Merchant’s equipment. Merchant understand that the Services may store and backup files that are no longer usable due to corruption from viruses, software malfunctions and other causes, which might result in Merchant restoring files that are no longer usable. Without limiting the generality of Section 5, FreshLime will have no liability to Merchant for any unauthorized access to, or use, alteration, corruption, deletion, destruction or loss of any of Merchant’s User Data on Merchant’s equipment.
- Customer Data. In connection with FreshLime’s performance of the Services,
- WARRANTIES, REPRESENTATIONS, AGREEMENTS
- Authority. Merchant represents and warrants that (i) Merchant has full corporate right, power and authority to enter into these Terms of Service, (ii) the execution of these Terms of Service by and the performance of its obligations and duties hereunder do not and will not violate any agreement to which Merchant is a party or by which Merchant is bound, and (iii) when executed and delivered, these Terms of Service will constitute your legal, valid and binding obligation, in accordance with its terms.
- Compliance with Law. In connection with the subject matter of these Terms of Service,
Merchant agrees to, and warrants and represents that it shall, comply with all applicable United States Federal and State laws and regulations, including but not limited to any State or Federal laws that govern online promotions, Coupons, gift cards, and/or gift certificates data privacy and protection, sending of electronic marketing messages including but not limited to the CAN-SPAM Act of 2003, and HIPAA.
- Applications and Customer Data. Merchant represents and warrants: (i) that Merchant
is solely responsible for its Customer Data, including without limitation, the security of such Customer Data; (ii) that Merchant has the necessary rights and licenses, consents, permissions, waivers and releases to use the Customer Data and to enable FreshLime to
- Authorization and Account Information. Merchant represents and warrants that: (i) the
information Merchant provides in connection with Merchant’s registration for the Services is accurate and complete; (ii) if Merchant is registering for the Services as an individual, that Merchant is at least 18 years of age and has the legal capacity to enter into these Terms of Service; and (iii) if registering for the Services as an entity or organization, (a) Merchant is duly authorized to do business in the country or countries where it operates, (b) the individual accepting these Terms of Service and completing the registration for the Services meets the requirements of subsection (ii) above and is an authorized representative of Merchant, and (c) Merchant’s employees, officers, representatives and other agents accessing the Services are duly authorized to access the Services and to legally bind Merchant to these Terms of Service and all transactions conducted under Merchant’s account.
- LIMITED WARRANTY
- FreshLime Platform and Services. FreshLime warrants solely to Merchant that the
FreshLime Platform and the Services, when used in accordance with the terms of these Terms of Service, will function substantially in accordance with the Documentation. FreshLime shall use commercially reasonable efforts to perform the Services according to the agreed upon terms and specifications between Merchant and FreshLime in any applicable Subscription Order. FreshLime’s sole obligation and Merchant’s exclusive remedy hereunder with respect to any failure of the foregoing obligations shall be to use reasonable efforts to correct any such failure. FreshLime shall have no obligation for any failure resulting from (i) content provided by or passed through Merchant or third-parties in connection with the Services (including Marketing Content); (ii) operating system modifications, changes or updates applied by the Merchant; (iii) the use or combination of the FreshLime Platform or the Services with any other software or hardware not supported by FreshLime; (iv) causes external to the FreshLime Platform or the Services, such as problems with the hardware, network or other infrastructure with which the FreshLime Platform and the Services are used; (v) unauthorized or improper use of the
FreshLime Platform or the Services; or (vi) any modification of the FreshLime Platform or the Services by anyone other than FreshLime.
- Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREUNDER, THE
FRESHLIME PLATFORM AND THE SERVICES ARE PROVIDED TO MERCHANT “AS IS,” WITHOUT WARRANTY OF ANY KIND. FRESHLIME HEREBY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THESE TERMS OF SERVICE, THE FRESHLIME PLATFORM, THE SERVICES OR THE COUPONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. Without limiting the generality of the foregoing, FreshLime does not warrant that the FreshLime Platform or the Services will meet Merchant’s requirements or operate without interruption OR DOWNTIME or be error free. Notwithstanding anything in these Terms of Service to the contrary, the warranties provided by FreshLime hereunder with respect to the FreshLime Platform or the Services may not be extended, supplemented or modified by a Reseller, and if a Reseller makes any additional warranty, representation or commitment regarding the FreshLime Platform or the Services (or modifies an existing warranty, representation or commitment granted by FreshLime regarding the FreshLime Platform or the Services), the Reseller shall be solely responsible for any such additional warranties, representations or commitments or modifications.
- LIMITATION OF LIABILITY
- TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO
EVENT WILL FRESHLIME, NOR ANY OF ITS AFFILIATES, SUBCONTRACTORS, LICENSORS, RESELLERS, SUPPLIERS OR RESELLERS, OR ANY OF ITS THIRD PARTY PARTNERS, BE LIABLE TO MERCHANT OR ANY OTHER THIRD PARTY FOR LOST REVENUES, LOST PROFITS OR OTHER SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, RELIANCE OR EXEMPLARY DAMAGES ARISING FROM MERCHANTS OR ANY OTHER THIRD PARTY’S USE OF OR INABILITY TO USE THE SERVICES INCLUDING, BUT NOT LIMITED TO, LOSS OF TECHNOLOGY, LOSS OF DATA OR INTERRUPTION OR LOSS OF USE DAMAGES WHETHER OR NOT FRESHLIME HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. THE MAXIMUM AGGREGATE LIABILITY OF FRESHLIME, ITS LICENSORS, RESELLERS AND RESELLERS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), SHALL NOT EXCEED THE ACTUAL FEES PAID BY MERCHANT FOR THE SERVICE FOR THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE INITIAL EVENT GIVING RISE TO LIABILITY HEREUNDER.
2. Merchant may not bring any suit or action against FreshLime for any reason whatsoever
more than one (1) year after the cause of action accrued.
- Furthermore and notwithstanding anything herein to the contrary, Merchant
acknowledges and agrees that: (i) any Services (“Partner Services”) provided by, through or in partnership with Reseller or any other third-party partner of FreshLime (“Partners”) ARE PROVIDED TO MERCHANT “AS IS,” WITHOUT WARRANTY OF ANY KIND. FRESHLIME HEREBY DISCLAIMS ON BEHALF OF THE PARTNERS ALL OTHER WARRANTIES WITH RESPECT TO SUCH PARTNER SERVICES. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, NO PARTNER SHALL HAVE ANY LIABILITY TO MERCHANT OTHER THAN AS MAY BE SET FORTH IN THE PARTNER’S STANDARD END USER TERMS AND CONDITIONS FOR THE PARTNER SERVICES, (ii) each Partner is hereby granted a limited license to use any content supplied by Merchant in connection with the Partner Services (“Merchant Content”), with the right to sublicense to Partner’s publisher partners in connection with the operation of the Partner Services, provided that Partner and its publisher partners shall not provide any third party with access to Merchant Content nor use Merchant Content for its or their own commercial benefit beyond the provision of the Partner Services; (iii) at Merchant’s request, reasonable efforts will be used by the Partners to remove from publication any Merchant Marketing Content, but in no event will a Partner or its publisher partners have any liability if such Merchant Marketing Content nonetheless continues to be published; (iv) Merchant will cooperate to provide FreshLime with all information reasonably required by a Partner to provide any Partner Services; (v) each Partner is an intended third party beneficiary of this Section 9.3; and (vi) the terms and conditions of all Partner Services shall be subject to the Partner’s standard end user terms and conditions for such Services.
Unless otherwise specified in a Subscription Order (including a Subscription Order with a Reseller), FreshLime or a FreshLime agent will provide Merchant support to Merchant via a dedicated telephone number during our regular business hours, Monday through Friday from 8:00 AM to 6:00 PM MST, excluding U.S. national holidays. In providing support, FreshLime or a FreshLime agent may use a variety of tools to aid in the process of resolving Merchant issues as a Merchant and may request that Merchant provides additional information in order to resolve these issues. Merchant hereby grants FreshLime and such agent the right to use those tools and any information Merchant provides to FreshLime in order to provide Merchant with support.
Merchant will indemnify and hold FreshLime, its Partners, its and their investors, officers, directors, affiliates, subsidiaries, licensors, agents and employees (collectively, the “FreshLime Parties”) harmless against any loss, liability, claim, demand, damages, penalties, settlements, costs and expenses, including reasonable attorney’s fees, resulting from any claim (including
third party claims), suit, action or proceeding against a FreshLime Party, resulting from or arising out of or in connection with (i) claims of intellectual property infringement based on (A) Merchant’s use or combination of the FreshLime Platform and the Services with any other software or hardware not supported by FreshLime, if such infringement would not have occurred but for such use or combination; (B) any modification of the FreshLime Platform and the Services by Merchant; or (C) the use by Merchant of any version of the FreshLime Platform and/or Services other than the current version of the FreshLime Platform and/or Services, if such version was made available by FreshLime with notice that such version was being provided in order to avoid an alleged or potential infringement; (ii) claims relating to the Coupons or the fulfillment thereof (including claims by purchasers or other Merchants of the Coupons on the FreshLime Site or Third-Party Partner Site relating to Merchant’s products or services); or (iii) any breach by Merchant of any representation, warranty or obligation under these Terms of Service; or (iv) the use, transmission, access or disclosure of Customer Data. FreshLime does not knowingly collect, either online or offline, personal information from persons under the age of thirteen (13). Merchant agrees to indemnify FreshLime if, as a result of customer Interactions, FreshLime collects Customer Data from persons under the age of 13.
- TERM AND TERMINATION
- Term. Subject to FreshLime’s receipt of all applicable Fees, and unless otherwise
terminated in accordance with this Section 12, these Terms of Service shall commence upon Merchant’s first use of the Services or acceptance of these Terms of Service (whichever comes first) and shall continue in effect for the period specified on the applicable Subscription Order (the “Term”). Each Subscription Order shall continue for the Term specified therein, and will AUTOMATICALLY RENEW for subsequent Terms (“Renewal Term”) unless either party provides at least forty-eight (48) business hours written notice of termination prior to the expiration of the then-current Term that it elects to terminate the Services under such Subscription Order at the end of such Term. Unless otherwise specified in a Subscription Order (including a Subscription Order with a Reseller), notification of termination from Merchant to FreshLime must be emailed in at support@FreshLime.com which must be confirmed by Merchant by phone and at (801) 653-5600 with a member of our support team during our regular business hours, Monday through Friday from 8:00 AM to 5:00 PM MST, excluding U.S. national holidays. If Merchant chooses not to renew, Merchant must fully notify FreshLime in writing at least 48 business hours prior to the Renewal Term, in which case, Merchant will continue to have access to the FreshLime service and be billed until the end of the then current term.
- Termination By Merchant. Unless otherwise specified in a Subscription Order
(including a Subscription Order with a Reseller), Merchant has the right to terminate these Terms of Service by written communication via email at support@FreshLime.com which must be confirmed by Merchant by phone at (801) 653-5600 with a member of our support team during our regular business hours, Monday through Friday from 8:00 AM to 5:00 PM MST, excluding U.S. national holidays, no fewer than forty-eight (48) business hours prior to Merchant’s next payment period. In
the case Merchant fails to fully notify FreshLime of their intent to cancel within this time, Merchant is responsible for the payment of services rendered for that Renewal Term. Merchant shall not in any event be entitled to any refund of any Fees previously paid to FreshLime for services. In the event that Merchant would like to terminate the subscription prior to the Renewal Term, 60% of the remaining outstanding dues will become immediately due within 7 days of request.
- Termination by FreshLime. FreshLime shall have the right to terminate these Terms of
Service at any time without cause and without notice. In addition, FreshLime may terminate these Terms of Service upon written notice to Merchant (or upon written notice provided to a Reseller and then passed along by a Reseller to a Merchant) if Merchant becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, or liquidation for the benefit of creditors. Upon a termination by FreshLime without cause, Merchant may be entitled to a pro-rata refund of any fees advanced to FreshLime.
- Past Due Bills. In the event of a credit card decline, FreshLime, or if applicable, a
Reseller, will attempt to reach out to Merchant for a new payment method. If FreshLime or, if applicable, a Reseller, fail to connect within 30 days, the account will be terminated due to non-payment and FreshLime will attempt to collect on any past due balances at Merchant’s expense. Per Section 4.2, in the event Merchant, or if applicable, a Reseller, requests to cancel with a past due balance, Merchant is required to pay for a minimum of 30 days worth of service.
- Consequences of Termination. Upon termination of these Terms of Service for any
reason, Merchant shall cease to use the FreshLime Platform, the Services and Documentation. FreshLime retains the right to cease Merchant’s access to any FreshLime Platform and services in the event of termination by either party.
- Data Preservation, Retrieval or Transfer. In the event of a temporary suspension of
Merchant’s access to Services, (i) FreshLime will not take any action to intentionally erase or delete Merchant Marketing Content or Customer Data stored on the Services; and (ii) applicable Fees will continue to accrue. In the event of the termination of these Terms of Service, Merchant may, upon reasonable notice to FreshLime, elect to retrieve Merchant Marketing Content or Customer Data directly. If these Terms of Service are terminated for any reason other than Merchant’s breach, FreshLime will not take any action to intentionally erase or delete Merchant Marketing Content or Customer Data stored on the Services for a period of sixty (60) days with respect to customer
Interactions as discussed above. If these Terms of Service are terminated on account of Merchant’s breach or alleged breach of these Terms of Service, FreshLime will not take any action to intentionally erase or delete Merchant Marketing Content or Customer Data stored on the Services for a period of fifteen (15) days, or for sixty (60) days with respect to customer Interactions as discussed above. In each case, Merchant’s post-termination retrieval or transfer of Data or Marketing Content will be conditioned on FreshLime’s receipt of all applicable Fees for the period following termination, payment in full of any other amounts owed, and Merchant’s compliance with such reasonable terms and conditions as FreshLime may establish with respect to such retrieval or transfer. In addition, if Merchant utilizes the professional services of FreshLime to assist Merchant in connection with such retrieval or transfer, Merchant will be responsible for FreshLime’s then current charges for such professional services. In the event that FreshLime does not receive all such Fees and amounts due within the thirty (30) day or fifteen (15) day periods described above, or in the event that Merchant fails to notify FreshLime of Merchant’s election with respect to Merchant Marketing Content or Customer Data within such period, FreshLime shall have no obligation to continue to store Merchant Marketing Content or Customer Data or permit Merchant to retrieve or transfer the same.
- Survival. The following shall survive the termination of these Terms of Service: (i) all
liabilities accrued under these Terms of Service prior to the effective date of termination; and (ii) all provisions of Sections 3.2, 3.6, 4, 6, 7, 8.2, 9, 11, 12.4, 12.5 12.6 , 13 and 14 of these Terms of Service. Subject to the provisions of Section 9 hereof, the rights provided in this Section 12 shall be in addition to any and all rights and remedies available to a non-defaulting party at law or in equity upon any breach of these Terms of Service by the other party.
- Digital Millennium Copyright Act; Take Down Notice and Procedures
It is FreshLime’s policy to respond to notices alleging that any material uploaded by users of the Services or the FreshLime Platform infringes another persons’ copyright. If you believe any material accessible on or from the Site or the Services infringes your copyright, you may request removal of those materials (or access thereto) from this web site by contacting the FreshLime, Inc. copyright agent (identified below) and providing the following information:
- Identification of the copyrighted work that you believe to be infringed. Please describe the work, and where possible include a copy or the location (URL) of an authorized version of the work. 2. Identification of the material that you believe to be infringing and its location. Please
describe the material, and provide us with its URL or any other pertinent information that will allow us to locate the material. 3. Your name, address, telephone number and (if available) e-mail address. 4. A statement that you have a good faith belief that the use of the materials is not
authorized by the copyright owner, its agent, or the law.
5. A statement that the information that you have supplied is accurate, and indicating that “under penalty of perjury,” you are the copyright owner or are authorized to act on the copyright owner’s behalf. 6. A signature or the electronic equivalent from the copyright holder or authorized
Our agent for copyright issues relating to the Site or Services is: FreshLime FreshLime, Inc. Address: 3300 N. Ashton Blvd Suite 210, Lehi, UT 84043 Phone: (801) 653-5600 Email: legal@FreshLime.com
FreshLime has adopted a policy of terminating, in appropriate circumstances, accounts of users of the Services or FreshLime Platform who are deemed to have repeatedly uploaded content that infringes the intellectual property rights of others.
- Marketing. Merchant agrees that FreshLime may refer to Merchant by name and
trademark in FreshLime’s marketing materials and web site. Merchant understands and acknowledges that FreshLime does not certify or endorse, and has no obligation to certify or endorse, any of Merchant’s products or content.
- Credit Card Authorization. By submitting your credit/debit card (“Bank Card”) data to
FreshLime, or if applicable, a Reseller, you authorize FreshLime, or if applicable, a Reseller, in its complete discretion to submit a financial transaction(s) for a recurring charge to your issuing bank for settlement in accordance with the applicable Subscription Order or other instructions provided by you to FreshLime. You agree that once FreshLime, or if applicable, a Reseller, has approved or declined your transaction, FreshLime has fully performed under the terms of this Agreement. You agree to contact FreshLime, or if applicable, a Reseller, as described above in the event that you desire to cancel any recurring charge. Should you fail to contact FreshLime, or if applicable, a Reseller, in accordance with these Terms of Service, you agree not to seek any redress against FreshLime, or if applicable, a Reseller, for such recurring charges and you agree to indemnify and hold FreshLime harmless from any losses or damages that you suffer as a result of a recurring charge. If you think that there is an error on your account, including an incorrect amount or unauthorized transaction, you agree to contact FreshLime, or if applicable, a Reseller, 48 business hours prior to the next billing cycle by email and phone as described above. Upon proper notification, FreshLime, in its sole discretion may issue a credit to your Bank Card.
- Modification; Waiver. FreshLime shall have the right to amend these Terms of Service at any time, effective upon posting of an updated version of these Terms of Service at www.freshlime.com/terms. FreshLime shall use reasonable efforts to provide Merchant with notice of changes to these Terms of Service (including, by submitting a notice to the applicable Reseller to be forwarded to Merchant), but Merchant is responsible for regularly checking the FreshLime Site to inform Merchant of such changes. Continued use of the Services after any such changes are posted shall constitute Merchant’s agreement to such changes. The waiver by either party of a breach of any provision hereof shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of such party to avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver of any right, power or privilege.
- Governing Law. These Terms of Service shall be governed by and construed in
accordance with the laws of the State of Utah as if made in and performed entirely within the State of Utah. The parties expressly reject any application to these Terms of Service of the United Nations Convention on Contracts for the International Sale of Goods. All disputes, actions, claims or causes of action arising out of this these Terms of Service or the Services shall be subject to the exclusive jurisdiction of the state and federal courts located in Utah, and Merchant hereby consents to the jurisdiction of such courts.
- Assignment. Merchant may not assign its rights or delegate any obligations hereunder
without the express prior written consent of FreshLime. Any assignment by Merchant without the prior written consent of FreshLime shall be null and void. FreshLime may assign its rights or obligations hereunder without notice or consent; provided, however, that the Services shall continue to operate as specified in these Terms of Service. These Terms of Service shall inure to the benefit of each party’s permitted successors and assigns.
- Force Majeure. If either party is unable to perform any of its obligations hereunder
(other than payment obligations) due to any act of God, fire, casualty, flood, war, strike,
shortage or any other cause beyond its reasonable control, and if such party uses reasonable efforts to avoid such occurrence and minimize its duration and gives prompt notice to the other party, then the affected party’s performance shall be excused and the time for its performance shall be extended for the period of delay or inability to perform. If the force majeure continues for more than thirty (30) calendar days, then either party may terminate these Terms of Service for convenience upon written notice to the other party.
- Severability. In the event that any provision contained herein shall for any reason be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, to such extent such provision shall be deemed null and void and severed from these Terms of Service, and the remainder hereof shall remain in full force and effect and enforceable.
- Independent Contractor. Neither Merchant nor FreshLime shall be deemed to be an agent of the other and the relationship of Merchant and FreshLime shall be that of independent contractors. Neither Merchant nor FreshLime shall have any right or authority to assume any obligations, or to make any representations or warranties, whether express or implied, on behalf of the other party, or to bind the other party in any matter whatsoever.
FreshLime, Inc. will receive a completed IRS form W-9 and will issue a 1099K in accordance with IRS regulations.
- Notices. Except as otherwise provided, notices under these Terms of Service shall be
delivered by email addressed to the other party at such address as is set forth in the applicable Subscription Order or such other email address as Merchant may provide to FreshLime. Such notice will be deemed to have been given as of the date it is delivered by electronic mail, personally, by confirmed facsimile or by courier, or five (5) days after it is sent by postal mail. All communications and notices to be made or given pursuant to these Terms of Service shall be in the English language.
- Compliance With Laws. Merchant agrees to comply at all times with all laws, rules and regulations applicable to Merchant’s use of the Services, including but not limited to data privacy laws and legal requirements.
- Headings. The headings of the sections of these Terms of Service are for convenience of
reference only and shall not be considered in construing these Terms of Service.
13. Arbitration. In any claim, action or proceeding to enforce any right or obligation of the
parties under these Terms of Service including, without limitation, relating to your use of our services, you hereby waive any right you may now have or hereafter possess to a trial by jury.
Both parties agree to resolve any dispute either Party may have arising out of or relating to these Terms of Service or the FreshLime Services in good faith mediation. In the event no mutual agreement is made under mediation within sixty (60) days of notice of such dispute, the Parties have the right to resolve such dispute via arbitration before a single arbitrator pursuant to then current Commercial Rules of the American Arbitration Association (AAA). The arbitrator may award any relief available under applicable law including but not limited to an award of attorneys’ fees, This agreement to arbitrate does not interfere with either party’s right to file a claim with a state or federal agency with jurisdiction thereof to the extent permitted by applicable law. Even if allowed under AAA rules, no class or collective action or arbitration may be brought against FreshLime hereunder unless required by applicable law. If either you or FreshLime intends to seek arbitration under these terms of service, the party seeking arbitration must first notify the other party of the dispute in writing at least 30 days in advance of initiating the arbitration. Notice to FreshLime should be sent as required by these Terms of Service. The notice must describe the nature of the claim and the relief being sought. If you and FreshLime are unable to resolve our dispute within 30 days, either party may then proceed to file a claim for arbitration.
The arbitration, information produced, and pre-and post hearing proceedings will be confidential and any award shall not be used in any other case except to enforce the award itself.
If Merchant has any questions or concerns about what has been stated in this Terms of Service, please feel free to contact us at legal@FreshLime.com.
Article I. Definitions
For purposes of this Agreement, the definitions set forth below apply:
“Authorized User” means any of Your employees, consultants, contractors or agents authorized by Your administrator to access and use the FreshLime Service on behalf of Your business, in each case subject to such person’s agreement to be bound by the terms of this Agreement.
“Front End Code” means our user interface display and usability platform. This includes, but is not limited to, the layout, color scheme, HTML pages and source code, etc.
“FreshLime Materials” means any documentation, user guides or other similar materials provided by FreshLime to You in connection with Your use of the FreshLime Service.
“FreshLime Service” means any of the FreshLime set of SaaS solutions that are developed, operated, and maintained by FreshLime (and its third party service providers) and that are subscribed to through an FreshLime branded or controlled website (or FreshLime partner website) that includes a link to this Agreement. The definition of FreshLime Service does not include any separate professional Services (as defined below) that may be purchased by You from FreshLime.
“Subscription Form” means any online or written subscription order form for the FreshLime Service or for Services submitted by You either during an online subscription process or separately signed by You and submitted to FreshLime, and any future purchase order or order form that makes reference to this Agreement.
“PHI” means (i) “protected health information” as defined in 45 CFR § 160.103, and (ii) any other patient or health information protected by the Health Insurance Portability and Accountability Act of 1996, as it may be amended from time to time (“HIPAA”), including the regulatory revisions implemented pursuant to the Health Information Technology for Economic and Clinical Health Act (the “HITECH ACT”).
“Services” means any implementation, training or other professional services provided by FreshLime to You pursuant to the terms of an Order Form.
“Subscription Term” means the use term for the FreshLime Service set forth on Your Order Form and any additional renewals of such term.
“Third Party Content” means the content, including software code, that an FreshLime partner or other third party may bundle with the FreshLime Service, for a specific market or niche Couponing.
“Your Data” means registration information, information concerning Your Authorized Users and customers and contacts, business, marketing and financial information, and any similar data that You upload to the FreshLime Service.
Article II. Use Rights and Restrictions
2.1 Use Rights; Restrictions. Subject to the terms of this Agreement, FreshLime grants to You during the Subscription Term the non-transferable (except as permitted below), non-exclusive right to permit Your Authorized Users to access and use the FreshLime Service (and any FreshLime Materials provided to You) to allow You to perform contact management, automated marketing, lead tracking and other related business functions that the FreshLime Service is designed to perform, subject to the following restrictions: (i) Your use of the FreshLime Service may not be on behalf of third parties unless a separate agreement between You and FreshLime permits use of the FreshLime Service on behalf of Your clients (and in such case limited to use on behalf of clients for whom You have purchased access and use rights); (ii) except as expressly permitted herein or in a separate partner agreement between You and FreshLime, You may not license, sell, rent, lease, transfer, assign, distribute, display, host, outsource otherwise commercially exploit or make the FreshLime Service or the FreshLime Materials available to
any third party; (iii) You may not modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the FreshLime Service or FreshLime Materials (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law), or access or use the FreshLime Service or FreshLime Materials in order to build a similar or competitive product or service; (iv) Your use of the FreshLime Service (in terms of number of Authorized Users, maximum list sizes, monthly email limitations, etc.) shall conform with the restrictions set forth in the Order Form for the level of subscription purchased by You (FreshLime may monitor Your compliance with these limits and if it detects overuse require that You upgrade to the appropriate higher subscription level); (v) Your use of the FreshLime Service must not cause undue strain or stress on the FreshLime network through excessive API calls or other non-standard use; and (v) Your use of the FreshLime Service must comply with the separate FreshLime Acceptable Use Policy posted on the FreshLime website (www.FreshLime.com) as updated by FreshLime from time to time.
2.2 Technical Support. During the Subscription Term, You will be entitled at no extra charge to access online user guides, knowledge bases and self-help tools, and any additional standard technical support resources (collectively, “Technical Support”) for the FreshLime Service Couponed by FreshLime from time to time, the terms of conditions of which may be described and updated from time to time on the support or customer care sections of the relevant FreshLime website (www.FreshLime.com). FreshLime reserves the right to modify the posted terms and conditions for Technical Support, at any time at its sole discretion.
2.3 Intellectual Property Rights. FreshLime shall retain all right, title and interest (including all copyrights, patents, service marks, trademarks and other intellectual property rights) in and to the FreshLime Service and FreshLime Materials (including application development, business and technical methodologies, and implementation and business processes, used by FreshLime to develop or provide the FreshLime Service or FreshLime Materials), and any and all updates, enhancements, customizations, revisions, modifications, future releases and any other changes relating to any of the foregoing. Except for the limited access and use rights granted pursuant to this Agreement, You do not acquire any interest in the FreshLime Service or FreshLime Materials. You agree that any suggestions, enhancement requests, feedback, recommendations or other information provided by You or any of Your Authorized Users relating to the FreshLime Service or the FreshLime Materials may be used by FreshLime without restriction or obligation to You.
2.4 Additional Restrictions. You are expressly prohibited from using any Front End Code for any purpose outside of the intended design and implementation of Your authorized use of the FreshLime Service. Any replication or use of any aspect of the Front End Code or other FreshLime application or Services for any purpose designed or intended to compete with FreshLime’s solutions is strictly prohibited.
2.5 Ownership of Your Data. As between You and FreshLime, Your Data and any similar data provided to FreshLime outside of the uploading process (either in hard copy or electronic format) is and shall remain Your property. To enable FreshLime to provide You with the FreshLime Service, and subject to the terms and conditions of this Agreement, You hereby grant to FreshLime a non-exclusive right to use, copy, distribute and display Your Data solely in
connection with FreshLime’s operation of the FreshLime Service on Your behalf. You, not FreshLime, shall have sole responsibility for the accuracy, integrity, and reliability of Your Data, and FreshLime will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any of Your Data. FreshLime will protect any of Your Data provided to FreshLime as confidential in accordance with Article IV below.
Article III. Fees
3.1 Fees. The fees for the FreshLime Service and any additional Services (“Fees”) are set forth in the Order Form and are payable in advance, irrevocable and non-refundable except as set forth in the Order Form and this Agreement. You agree to provide FreshLime with complete and accurate billing and contact information. Where payment by credit card is indicated in the Order Form, or You otherwise provide FreshLime with credit card information, You authorize FreshLime to bill such credit card (a) at the time that You order the FreshLime Service or other Services set forth in the Order Form, (b) for any billing frequency otherwise established in the Order Form, and (c) at the time of any renewal, for the amount charged plus any applicable sales taxes for any renewed Subscription Term. If FreshLime, in its discretion, permits You to make payment using a method other than a credit card, FreshLime will invoice You at the time of the initial Order Form and thereafter on a monthly basis in advance of the relevant billing period, and all such amounts invoiced will be due within ten (10) days of Your receipt of FreshLime’s invoice. Late payments shall be subject to a service charge of one and one-half percent (1.5%) per month, or the maximum charge permitted by law, whichever is less.
3.2 Taxes. You shall pay all personal property, sales, use, value-added, withholding and similar taxes (other than taxes on FreshLime’s net income) arising from the transactions described in this Agreement, even if such amounts are not listed on an Order Form. To the extent You are exempt from sales or other taxes, You agree to provide FreshLime, upon request, with the appropriate exemption certificate.
3.3 Non-Payment; Other Suspension Rights. FreshLime may terminate the FreshLime Service if the billing or contact information provided by You is false or fraudulent. FreshLime also reserves the right, in its discretion, to suspend Your access and/or use of the FreshLime Service: (i) where any payment is due but unpaid and You have been requested but failed to promptly cure such payment failure; or (ii) in the event a dispute arises on Your account as to who at Your business has authority to act or manage Your account and FreshLime is not promptly provided with written instructions from the interested parties associated with Your account that fully resolves the dispute. You acknowledge and agree that it a dispute arises as to management of Your account, then (i) if the listed owner of the account is a corporation, limited liability company or other registered entity, FreshLime may rely on public records (to the extent available) concerning the appropriate authorized executives or managers of Your entity; or (ii) if the listed owner is a dba or sole proprietorship, or any other entity for which public records of control are not readily accessible online, FreshLime may assume that the person or entity that has been making payments on Your account has the authority to manage the account. You agree that FreshLime shall not be liable to You nor to any third party for any suspension of the FreshLime Service resulting from Your non-payment of Fees or from a dispute as to the management rights to Your account.
Article IV. Confidentiality; Use of Names
4.1 Confidential Information. For purposes of this Agreement, confidential information shall include the business terms in the Order Form, Your Data, the FreshLime Service and the FreshLime Materials, and any information that is clearly identified in writing at the time of disclosure as confidential or that should be reasonably understood to be confidential by the receiving party given the nature of the information and the circumstances of its disclosure (“Confidential Information”). Each party agrees: (a) to receive and maintain in confidence all Confidential Information disclosed to it by the other party or by a third-party; (b) not to use the Confidential Information of the other party except to the extent necessary to perform its obligations or exercise rights hereunder; (c) to limit the internal dissemination of Confidential Information to those employees and contractors of the recipient who have a need to know and an obligation to protect it; and (d) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information). FreshLime will restrict its employees’ access to Your Confidential Information to only those employees necessary to successfully provide the FreshLime Service. FreshLime may disclose Confidential Information on a need-to-know basis to its contractors who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services for FreshLime in connection with the performance of this Agreement. Confidential Information shall not include information that: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the recipient, subsequent to disclosure by the disclosing party; or (4) the recipient becomes aware of from a third party not bound by non-disclosure obligations to the disclosing party and with the lawful right to disclose such information to the recipient. This Section will not be construed to prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority. The parties agree to give the other party prompt notice of the receipt of any subpoena or other similar request for such disclosure.
4.2 Credit Card Information. FreshLime agrees that it will retain and store any provided credit card information only for the minimum amount of time required for business, legal and/or regulatory purposes, and will use standard industry practices to protect such information from unauthorized access, disclosure or use.
4.3 Use of Names in Marketing. You may use FreshLime’s name and credentials in an appropriate and acceptable manner for Your standard marketing promotions, provided that You agree to cease or alter such use at FreshLime’s request where such use is contrary to FreshLime’s branding policies, could cause any brand confusion in the market or is otherwise objectionable to FreshLime. Similarly, FreshLime may use Your business name in an appropriate and acceptable manner for standard marketing promotions, provided that FreshLime agrees to cease or alter such use at Your request where such use is contrary to Your branding policies, could cause any brand confusion in the market or is otherwise objectionable to You. Acceptable and standard marketing promotions include, but are not limited to: client listings, press releases, surveys, interviews, reputable business publications, television, and web site presentation and promotion, etc.
Article V. Term & Termination
5.1 Standard Term. Unless a different Term is specified in a signed Order Form between You and FreshLime, the Initial Term of Your subscription to an FreshLime Service will begin on the submission or execution of Your Order Form and shall continue on a month to basis until the subscription is terminated as provided for in this Article 5. The term of this Agreement will automatically terminate when all active Subscription Terms have been terminated.
5.2 Termination without Cause. Either party may terminate the Subscription Term to an FreshLime Service by providing thirty (30) days’ prior written notice to the other party. FreshLime’s termination rights are in addition to any suspension rights it may have under this Agreement or the incorporated Acceptable Use Policy.
5.3 Effect of Termination. Upon termination of the Subscription Term, all Fees then due and payable to FreshLime must be paid in full. Contingent upon its receipt of all such Fees, FreshLime will continue to make Your Data available for downloading through the termination date. In addition, for a period of Ninety (90) days following termination, You may arrange for the downloading of Your Data by contacting FreshLime. Following this (90) day grace period, FreshLime may remove Your Data from the production environment for the FreshLime Service. The provisions of this Agreement which by their nature are intended to survive expiration or termination shall survive, including but not limited to obligations concerning confidentiality, protection of intellectual property, indemnification and payment of unpaid Fees and expenses.
Article VI. Warranties/limitation of Liability/indemnity
6.1 Limited Warranties. FreshLime warrants for a period of thirty (30) days following their delivery that all professional Services provided hereunder will be performed in a workmanlike manner, in conformity with the professional standards for comparable services in the industry. For any breach of this warranty timely reported by You, Your exclusive remedy shall be the re- performance of the deficient Services, and if FreshLime is unable to re-perform the deficient Services as warranted, You shall be entitled to recover the portion of the Fees paid to FreshLime for such deficient Services, and such refund shall be FreshLime’s entire liability. You warrant that Your business shall, at all times, comply with, and shall remain solely responsible for compliance with, all applicable federal, state and local laws and regulations, as well as the FreshLime Acceptable Use Policy, in connection with Your use of the FreshLime Service, and You agree to indemnify and hold FreshLime harmless from and against any third party or government claims, including all related damages, costs and expenses (including reasonable attorneys’ fees), that arise due to Your violation of law or breach of this warranty in Your use of the FreshLime Service.
All third party hardware, including but not limited to card readers, and other products included or sold with the Services are provided solely according to the warranty and other terms specified by the manufacturer, who is solely responsible for service and support for its product. For service, support, or warranty assistance, you should contact the manufacturer directly (see FreshLime Mobile Payments). FRESHLIME MAKES NO WARRANTIES, EXPRESS OR IMPLIED,
WITH RESPECT TO SUCH THIRD PARTY PRODUCTS, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR CONDITION OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL FRESHLIME BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, OR COVER DAMAGES ARISING OUT OF YOUR USE OF OR INABILITY TO USE THIRD PARTY PRODUCTS OR ANY AMOUNT IN EXCESS OF THE AMOUNT PAID BY YOU FOR THE PRODUCT THAT GIVES RISE TO ANY CLAIM.
6.2 FreshLime Not Responsible for Third Party Content. The FreshLime Service may be bundled by third parties (including but not limited to FreshLime marketing or content partners) with Third Party Content designed to facilitate use of the FreshLime Service in certain market niches or to customize the FreshLime Service for use by certain categories of target customers. To the extent that You either purchase the FreshLime Service from such third parties or acquire the Third Party Content or configuration services from such third parties (even though you may purchase the core FreshLime Service directly from FreshLime), FreshLime does not warrant in any manner and will not be responsible for such Third Party Content and You agree to look solely to the relevant third party provider (and not FreshLime) if and to the extent that you have any complaints or issues relating to the Third Party Content or its interaction with an FreshLime Service.
6.2 Warranty Disclaimers. EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, UNINTERRUPTED SERVICE OR FITNESS FOR A PARTICULAR PURPOSE. YOU ACKNOWLEDGE THAT FRESHLIME SPECIFICALLY DISCLAIMS ALL WARRANTIES RELATING TO THE FRESHLIME SERVICE.
6.3 Limitation of Liability. IN NO EVENT WILL FRESHLIME BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, LOSS OF BUSINESS OR OTHER LOSS ARISING OUT OF OR RESULTING FROM THIS AGREEMENT EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER THEORY OF LEGAL LIABILITY. IN ADDITION, IN NO EVENT WILL FRESHLIME’S CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY YOU TO
FRESHLIME DURING THE SIX MONTH PERIOD PRECEDING THE ALLEGED LIABILITY EVENT.
Article VII. General Provisions
7.1 Notice. Notices regarding this Agreement to FreshLime shall be in writing and sent by first class mail or overnight courier (if from within the United States), or international courier, addressed to FreshLime, Attn. Agreements, 3300 N Ashton Blvd, #210 Lehi, UT 84043. FreshLime may give notice applicable to FreshLime’s general customer base by means of a general notice on the FreshLime Service portal, and notices specific to You by electronic mail to Your designated contact’s email address on record with FreshLime, or by written communication sent by first class mail or overnight courier (if to an address within the United States), or international courier, to Your address on record in FreshLime’s account information. All notices shall be deemed to have been given three (3) days after mailing or posting (if sent by first class mail), upon delivery in the case of courier, or twelve (12) hours after sending by confirmed facsimile, email or posting to the FreshLime Service portal.
7.2 Assignment. You may not assign this Agreement without providing prior notice to and obtaining the consent of FreshLime, which shall not be unreasonably denied provided Your account is in good standing. Any purported assignment in violation of this Section shall be void.
7.3 Integration; Modification. This Agreement and the information incorporated into this Agreement by written reference (including reference to information contained in a URL or referenced policy), together with any applicable Order Form, represent the parties’ entire understanding relating to the FreshLime Service, the FreshLime Materials and the Services, and supersede any prior or contemporaneous, conflicting or additional communications. The terms and conditions of this Agreement may only be amended by written agreement of the parties.
7.4 Governing Law; Arbitration. This Agreement shall be governed by the laws of the State of Utah without giving effect to conflict of laws principles. Any and all disputes, controversies and claims arising out of or relating to this Agreement or concerning the respective rights or obligations of the parties hereto shall be settled and determined by arbitration before a panel of one (1) arbitrator in Utah County, Utah, pursuant to the Commercial Rules of the American Arbitration Association then in effect. Judgment upon the award rendered may be entered in any court having jurisdiction or application may be made to such court for a judicial acceptance of the award and an order of enforcement. The parties agree that the arbitrator shall have the power to award damages, injunctive relief and reasonable attorneys’ fees and expenses to the prevailing party.
7.5 Force Majeure. Except for Your obligation to pay Fees for the FreshLime Service or other Services rendered, neither party will be responsible for failure of performance due to causes beyond its control. Such causes include (without limitation) accidents, acts of God, labor disputes, actions of any government agency, shortage of materials, acts of terrorism, or the stability or availability of the Internet or a portion thereof.
7.6 Export. You agree that U.S. export control laws and other applicable export and import laws govern Your use of the FreshLime Service, including FreshLime technology. You represent that You are neither a citizen of an embargoed country nor prohibited end user under applicable U.S. export or anti-terrorism laws, regulations and lists. You agree not to use or export, nor allow a third party to use or export, the FreshLime Service or technology in any manner that would violate applicable law, including but not limited to applicable export and import control laws and regulations.
7.7 Severability. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.
7.8 Relationship of Parties. No joint venture, partnership, employment, or agency relationship exists between FreshLime and You as a result of this Agreement or use of the FreshLime Service.
7.9 Waiver. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.
7.10 Invalidity; Waivers. If any provision or portion of this Agreement is held invalid, illegal, void or unenforceable as it appears in this Agreement by reason of any rule of law, administrative or judicial provision or public policy, then such provision shall be construed as being enforceable to the extent such rule of law, administrative or judicial provision or public policy allows. All other provisions of this Agreement shall nevertheless remain in full force and effect. Neither of the parties shall be deemed to have waived any of its rights, powers or remedies hereunder unless the waiving party expresses such a waiver in writing.