PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY. THESE TERMS AND CONDITIONS OF USE MAY HAVE CHANGED SINCE YOUR LAST VISIT TO THIS WEBSITE AND TO THE SERVICES ON THIS WEBSITE. YOU AGREE TO CHECK FOR UPDATES TO THESE TERMS AND CONDITIONS OF USE. BY USING THIS WEBSITE OR THE SERVICES, YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS OF USE. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS OF USE, THEN YOU MAY NOT USE THIS WEBSITE OR THE SERVICE.
Last Updated: December 20, 2024
Promoboxx, Inc. (“Promoboxx” or “we” or “us”) provides access through its website at promoboxx.com (the “Site”) to tools, features and services (together with the Site, along with associated and successor websites, tools, services, and features, or any part thereof, the “Service”) that help a Brand (as defined below) develop and share with its Retailers (as defined below) the Brand’s marketing online content, and in some cases online campaigns (each, a “Campaign”) that enable a Brand’s Retailers to participate in, customize (as permitted by these Terms), and share the Content and/or Campaigns with consumers (including through online channels, such as Facebook, Twitter, and other third party websites, and via email).
By checking the box or clicking the button next to a link to these Terms and Conditions of Use, as they may be amended by us (hereinafter, the “Terms”) on any of our sign-up pages, by executing an order form referencing these Terms and setting forth pricing, initial term, and other terms and conditions (each, an “Order Form”), by logging into your Promoboxx account, by accessing the Site or by accessing the Service in any manner, you accept these Terms, and any guidelines, rules or operating policies that we may post on this website, including the Promoboxx Privacy Policy, which are specifically incorporated herein by reference (collectively, the “Agreement”) on behalf of yourself and any business or organization you represent (collectively, “you”). Any terms and conditions that may be contained in any acknowledgement, invoice, purchase order or other form you provide are specifically null and void.
We may amend this Agreement from time to time due to changes to the Site or the Service, to account for developments under the law, or for any other commercially reasonable purpose. Future performance by us of our obligations under this Agreement is sufficient consideration for any such amendment. Any amendment will only become effective upon notification to you (by email or by posting on our Site), and if you do not want to agree to any such amendment, you should stop using the Site and the Service and contact us to cancel your account.
As used herein, a “Brand” means an individual or entity (or a regional retailer sales and/or marketing group, media or marketing partner, strategic or technology partner, sales representative, agency, or distributor acting on such individual or entity’s behalf) that has entered a subscription with Promoboxx for use of the Service and is associated with, and whose goods and/or services may be identified by, a distinctive name, trademark, and/or service mark or a collection thereof; a “Retailer” means an individual or entity that sells or makes available the goods and/or services of one or more Brands to consumers and is invited to use the Service by one or more Brands. By using the Service, you agree that you will be considered either a Brand or a Retailer and you will be bound by this Agreement.
1. Access to the Service.
Promoboxx shall make the Service available to Brands via a statement of work or other order form and to Retailers when invited by a Brand or Promoboxx, in all cases pursuant to the terms and conditions set forth in this Agreement and any applicable ordering document. Your continued access to the Service will depend upon your status as either a Brand or a Retailer. A Brand’s access to the Service will terminate upon expiration of the subscription term set forth in an applicable ordering document entered by the Brand and Promoboxx (hereinafter, an “Order”) or in accordance with any other applicable terms in the Order or this Agreement.
2. Campaigns.
You shall bear all costs of procuring and delivering your Campaigns, products and services, including any associated shipping, taxes and any other fees associated therewith. You hold all necessary governmental and third party licenses, approvals, authorizations and registrations necessary to offer your Campaigns, products and services. You agree to provide your Campaigns, products and services in a safe and professional manner, consistent with industry best practices, including keeping reliable records. In any event, you are solely responsible for the content of your Campaigns, products and services, including any and all injuries, damages, claims, liabilities and costs arising out of such content.
You will be solely responsible for compliance with any and all statements and promises you make in connection with, and for all user assistance, support and warranty coverage associated with, your Campaigns, products and services. You agree that i) your Campaigns will prominently include any applicable rules, restrictions or limitations necessary to comply with applicable law, this Agreement and your own requirements, ii) any such rules, restrictions or limitations will be properly presented to each prospective purchaser before such prospective purchaser is bound to make a payment or take any other action, and iii) you will comply with such rules, restrictions or limitations. You further agree to provide sufficient contact information for any customer questions, complaints or claims.
3. Restrictions; Limitations on Use; Reservation of Rights.
Promoboxx will at all times solely and exclusively own all right, title, and interest in and to this Site and the Service, and all intellectual property or other rights in the foregoing, including but not limited to any and all modifications and derivative works. No implied licenses are granted.
4. Content; Uploaded Materials.
You agree that all user information, text, data, software, sounds, photographs, audio, audiovisual, video, artwork, graphics, messages, feedback, data, comments, suggestions, and other content of any nature that are created, customized, or transmitted to, via, or in connection with the Site or the Service (collectively, the “Content”) are the sole responsibility of the person or entity making such Content available for use with the Service. Accordingly, you, and not Promoboxx, are entirely responsible for the Content you create, customize, or transmit through or in connection with the Service. You represent and warrant that you have the applicable rights necessary to post or upload your Content to the Service and permit use of the Content in connection the Service. You hereby license Promoboxx those rights necessary to use the Content to provide the Service to you, and if you are a Brand, to sublicense rights to use the Content to your Retailers.
5. Account and Passwords.
You agree to provide true, accurate, current and complete information about yourself and your organization, as applicable, as requested in the registration form and elsewhere on the Site and in connection with the use of the Service, and agree to update such information if it changes. You are responsible for statements made and actions taken on the Service by you or under your account or through the use of your password. You agree to notify us of any actual or suspected unauthorized use of your user name, password or account as soon as reasonably possible after becoming aware.
6. Privacy Overview.
Promoboxx respects the privacy of visitors to, and users of, the Site and the Service. Information collected from users of the Site and the Service is subject to Promoboxx’s Privacy Policy. Please see Promoboxx’s Privacy Policy at https://promoboxx.com/privacy (the “Promoboxx Privacy Policy”) for more information on the collection and use of such information. You acknowledge and agree that the Promoboxx Privacy Policy, including, but not limited to, the manner in which Promoboxx collects, uses and discloses your personally identifiable information and non-personally identifiable information, is incorporated into, a part of, and governed by these Terms. By accepting these Terms, you agree to all of the terms of the Privacy Policy.
7. Data Retention and Security.
You agree that Promoboxx has no responsibility or liability for the deletion or failure to store any data, Content, or other communications or materials related to a Campaign or otherwise maintained or transmitted by, or in connection with, the Service. You acknowledge that Promoboxx may have set no fixed upper limit on the number of transmissions you may send or receive through the Service or the amount of storage space used; however, we retain the right, at our sole discretion, to create limits at any time upon thirty (30) days prior notice. Without limitation of the foregoing or any of its other obligations under this Agreement, Promoboxx agrees that for as long as Promoboxx controls, possesses, stores, transmits or processes User Data (as defined in Section 11 below), Promoboxx will establish, employ and maintain reasonable and industry standard data security measures that include technological, physical, administrative, organizational and procedural controls designed to: (1) protect User Data from unauthorized or unlawful use, alteration, access or disclosure, (2) ensure the availability of Promoboxx’s systems, and (3) prevent unauthorized access to, and unauthorized use of, Promoboxx’s systems.
8. Service Levels and Interruption.
Promoboxx will use commercially reasonable efforts to provide the Service in accordance with the then-current Service Level Guidelines available at https://promoboxx.com/sla (the “Service Level Guidelines” or “SLA”) . Notwithstanding anything to the contrary herein, we reserve the right to temporarily modify, suspend or discontinue our Service (or any part of thereof) with or without notice if we reasonably believe such action is necessary for effective operation of the Service, including the avoidance of an actual or potential security breach.
9. Third Party Sites.
The Site and the Service include social media tools that may, among other things, allow you to manage access, post and manage content on social network platforms (for example, Facebook, Twitter and LinkedIn) and provide access to websites and services that are controlled by third parties (each, a “Social Media Platform”). You hereby grant us all required permissions to access such Social Media Platforms on your behalf to provide the Service to you, including the use and analysis, for your benefit, of information made available by the Social Media Platforms.
Access to the Social Media Platforms is provided to you as a convenience, and we are not affiliated with or responsible for the content, action or performance of the Social Media Platforms or any third party sites or services associated with, or linked from, each Social Media Platform, and you expressly agree to use each Social Media Platforms, and such sites or services, at your own risk. Each Social Media Platform accessed from the Site or the Service is independent from us, and we have no control over, and assume no responsibility for, the content, privacy policy, terms of use and practices of such Social Media Platform. Each Social Media Platform may have terms of use and a privacy policy different than ours, and you should review the applicable terms and policies, including privacy and data gathering practices before proceeding. In no event shall any reference to any third party or third party product or Social Media Platform be construed as an approval or endorsement by us of that third party or of any product or service made available by such third party.
You agree to abide by the terms and conditions of any applicable Social Media Platform. Notwithstanding anything set forth herein to the contrary, you will abide by this Agreement regardless of anything to the contrary in your agreement with any third party, and you shall not use such Social Media Platform to avoid the restrictions set forth in this Agreement.
We may terminate any Social Media Platform’s ability to interact with the Site or the Service at any time, with or without notice, and in our sole discretion, with no liability to you or to any third party. Each Social Media Platform may take actions to impact our ability to make available some or all of the features of the Site or the Service at any time, with or without notice, and we will not be liable to you or to any third party for any such actions. We accept no responsibility for reviewing changes or updates to, or the quality, content, policies, nature or reliability of, any Social Media Platform.
10. Feedback.
You acknowledge that any ideas, suggestions, concepts, processes or techniques which you provide to us related to the Service, Promoboxx or its business (collectively, the “Feedback”) shall become the property of Promoboxx without any compensation or other consideration payable to you by us, and you do so of your own free will and volition. We may, in our sole discretion, use the Feedback in whatever form or derivative in connection with the Site, Service, or our business or other products or services. You hereby assign all rights in any Feedback to us and, as applicable, waive any moral rights.
11. User Data and Aggregated Data. As used herein, “User Data” means any data or Content that you or your authorized users lawfully upload, submit or otherwise transmit to or through the Site or the Service. As between you and us, you will retain all right, title and interest in and to the User Data in the form provided to us, subject to, in the case of Brands, Section 17.2, and in the case of Retailers, Section 18.3. Subject to the terms of this Agreement, you hereby grant to Promoboxx a non-exclusive, worldwide, royalty-free right (a) to collect, use, copy, store, transmit, distribute, display, publicly perform, modify and create derivative works of the User Data, in each case solely to the extent necessary, to provide the Service and any related services to you and to enhance the Service; and (b) to use Aggregated Data for its business purposes including, but not limited to, developing, publishing and commercializing benchmarks, predictive models, predictive analytics, and measures based on Aggregated Data. As used herein, “Aggregated Data” shall mean User Data that is (i) anonymized such that it does not identify any individual person, and (ii) combined with the data of other users or additional data sources. Our rights with respect to Aggregated Data will survive any expiration or termination of this Agreement. We retain all Intellectual Property Rights in the Aggregated Data.
12. Use of Name.
We may include your name in our published client lists, but will not issue a press release or any other publicity referring specifically to you without your prior written consent. .
13. Warranties and Warranty Disclaimer.
13.1 Promoboxx Representations and Warranties. Promoboxx represents and warrants to you that:
(a) Promoboxx is authorized to do business in each U.S. state where the Services are to be performed, Promoboxx has the full and unrestricted power and authority to execute, deliver and perform this Agreement, and such execution, delivery and performance have been duly authorized by all necessary action on the part of Promoboxx. The Agreement, when executed and delivered by Promoboxx in accordance with the provisions hereof, will be a legal, valid and binding obligation of Promoboxx, enforceable against Promoboxx in accordance with its terms.
(b) Promoboxx’s executing and performing the Services under this Agreement or any Order Form will not constitute a breach or default under any instrument or agreement to which Promoboxx is a party or by which Promoboxx is bound.
(c) The professional services, if any, performed hereunder will be of professional quality and will conform to generally accepted industry standards and practices for similar services. Promoboxx will use commercially acceptable measures to screen any software provided or made available to you hereunder for the purpose of avoiding the introduction of any “virus” or other computer software routine or hardware components which are designed to (i) permit access or use by third parties to the software or the Services, (ii) disable or damage hardware or damage, erase or delay access to your software or data, or (iii) perform any other similar detrimental actions.
(d) Promoboxx will comply with all applicable laws and regulations in connection with its performance under this Agreement.
13.2 Your Representations and Warranties. You represent and warrant to Promoboxx that:
(a) You have the full and unrestricted power and authority to execute, deliver and perform this Agreement, and such execution, delivery and performance have been duly authorized by all necessary action on your part. The Agreement, when accepted by you in accordance with the provisions hereof, will be your legal, valid and binding obligation, enforceable against you in accordance with its terms
(b) Your execution and performance of your obligations under this Agreement or any Order Form will not constitute a breach or default under any instrument or agreement to which you are a party or by which you are bound.
(c) You will use commercially acceptable measures to screen any Content made available by you hereunder for the purpose of avoiding the introduction of any “virus” or other computer software routine or hardware components which are designed to (i) permit access or use by third parties of the Content or the Services, (ii) disable or damage hardware or damage, erase or delay access to the Services, or (iii) perform any other similar detrimental actions.
(d) You will comply with all applicable laws and regulations in connection with its performance under this Agreement..
13.3 Warranty Disclaimer. PROMOBOXX WARRANTS THAT IT SHALL PROVIDE THE SERVICES HEREUNDER IN A PROFESSIONAL AND WORKMANLIKE MANNER. USE OF THE SITE OR THE SERVICE AND ANY RELIANCE BY YOU UPON THE SITE OR THE SERVICE, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. PROMOBOXX DOES NOT WARRANT THAT THE USE OF THE SITE OR THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SAME. EXCEPT AS EXPRESSLY SET FORTH HEREIN AND IN THE APPLICABLE SLA, PROMOBOXX DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. NO STATEMENT OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM PROMOBOXX IN ANY MEANS OR FASHION SHALL CREATE ANY WARRANTY NOT EXPRESSLY AND EXPLICITLY SET FORTH IN THIS AGREEMENT. PROMOBOXX SHALL HAVE NO LIABILITY OF ANY NATURE WHATSOEVER FOR YOUR COMPLIANCE WITH OR BREACH OF ANY LICENSE OR TERMS AND CONDITIONS OF ANY THIRD PARTIES OR THIRD PARTY SERVICES (INCLUDING THE SOCIAL MEDIA PLATFORMS). IN ADDITION, PROMOBOXX DOES NOT ENDORSE AND IS NOT RESPONSIBLE FOR (A) THE ACCURACY OR RELIABILITY OF ANY THIRD PARTY CONTENT, OPINION, ADVICE OR STATEMENT MADE BY ANYONE OTHER THAN PROMOBOXX, OR (B) ANY CAMPAIGN, CONTENT, OR ANY PRODUCT OR SERVICE PURCHASED OR OTHERWISE OBTAINED FROM ANY THIRD PARTY, INCLUDING PROMOBOXX CUSTOMERS. YOUR SOLE AND EXCLUSIVE REMEDIES FOR ANY FAILURE OR NONPERFORMANCE OF THE SITE OR THE SERVICE SHALL BE FOR PROMOBOXX TO USE COMMERCIALLY REASONABLE EFFORTS TO ADJUST OR REPAIR THE SITE OR THE SERVICE. IN THE EVENT PROMOBOXX IS UNABLE TO ADJUST OR REPAIR THE SITE WITHIN A REASONABLE PERIOD, YOU MAY TERMINATE THIS AGREEMENT BY PROVIDING WRITTEN NOTICE TO PROMOBOXX AND UPON RECEIPT OF SUCH NOTICE, PROMOBOXX WILL REFUND YOU ANY UNUSED AMOUNTS PREPAID TO PROMOBOXX. TO THE EXTENT APPLICABLE LAW PERMITS, YOU RELEASE PROMOBOXX FROM ANY CLAIMS OR LIABILITY RELATED TO (A) ANY CONTENT POSTED ON, OR OBTAINED IN CONNECTION WITH USE OF, THE SITE OR IN ANY MATERIALS SUBSCRIBER SENDS USING THE SITE OR THE SERVICE, OR (B) THE CONDUCT OF ANY OTHER PROMOBOXX CUSTOMERS OR THEIR RETAILERS OR CUSTOMERS.
14. Limitation of Liability.
EXCEPT WITH RESPECT TO DEATH OR PERSONAL INJURY DUE TO THE NEGLIGENCE OF EITHER PARTY, CLAIMS FOR INDEMNITY ARISING UNDER SECTION 15 HEREIN, AND/OR CLAIMS ARISING FROM GROSS NEGLIGENCE AND INTENTIONAL MISCONDUCT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL (I) EITHER PARTY, TOGETHER WITH ITS OFFICERS, DIRECTORS, EMPLOYEES, DISTRIBUTORS OR AGENTS, BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, AND (II) PROMOBOXX, TOGETHER WITH ITS OFFICERS, DIRECTORS, EMPLOYEES, DISTRIBUTORS OR AGENTS, BE LIABLE TO YOU OR ANY OTHER PERSON FOR DIRECT DAMAGES IN EXCESS OF THE AMOUNT PAID OR PAYABLE BY YOU UNDER THIS AGREEMENT IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE CLAIM. SUCH LIMITATIONS APPLY EVEN IF SUCH PARTY SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, REGARDLESS OF THE FORM OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY.
You agree that Promoboxx has set its prices and entered into this Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that they reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that they form an essential basis of the bargain between the parties.
15. Indemnification.
15.1 Indemnity by Promoboxx. Promoboxx shall (i) at its own expense, defend you against any third party claim that the Service, as provided by Promoboxx to you, infringes a patent or copyright enforceable in a country that is a signatory to the Berne Convention; and (ii) pay the resulting costs and damages finally awarded against you by a court of competent jurisdiction to the extent that such are the result of the third party claim, or pay the amounts stated in a written settlement negotiated and approved by Promoboxx. Should the Service become, or in Promoboxx’s opinion be likely to become, the subject of such a claim, Promoboxx may, at its option and expense, (1) procure for you the right to make continued use thereof; (2) replace or modify such so that it becomes non-infringing; or (3) if, in Promoboxx’s opinion, neither of the foregoing are reasonably available, Promoboxx shall notify you to cease use of the Service and, upon receipt thereof, Promoboxx shall refund any unused subscription fees pre-paid by you. Promoboxx shall have no obligation or liability to the extent that the alleged infringement arises out of or relates to: (A) your material breach of this Agreement; (B) the combination, operation or use of the Service as provided by Promoboxx to you with any products, services, data, items, or technology that were not provided by Promoboxx to you; (C) use of the Service for a purpose or in a manner for which the Service was not designed or use after Promoboxx notifies you to cease such use due to a possible or pending claim of infringement; (D) services provided by you and/or any revenue you derive therefrom; or (G) any data or information which you or a third party obtains, creates or utilizes in connection with the Service. THIS SECTION STATES YOUR SOLE AND EXCLUSIVE REMEDY AND PROMOBOXX’S ENTIRE LIABILITY FOR INFRINGEMENT CLAIMS PERTAINING TO THE SERVICE.
15.2 Indemnity by You. You agree to indemnify and hold harmless Promoboxx and its affiliates, licensors, agents, business partners and third party suppliers and providers, and its officers, directors, shareholders, employees, and agents, from and against any claim, demand, or investigation, including reasonable attorneys’ fees, made by any third party arising from your Content, Campaign(s), Subscriber’s use of the Site or Service, or actual violation of any law, rule, regulation, industry standard or right of a third party in connection with Subscriber’s Content, Campaign(s), or use of the Site or Service.
15.3 Indemnity Conditions. The foregoing indemnification obligations are conditioned on the party seeking indemnity (a) notifying the other party (the “Indemnifying Party”) promptly in writing of such action; (b) giving the Indemnifying Party sole control of the defense thereof and any related settlement negotiations; and (c) at the Indemnifying Party’s reasonable request and expense, cooperating with and assisting in such defense.
16. Termination.
In addition to any other rights and remedies set forth herein, we can terminate these Terms or your access to the Service (i) at any time, without prior notice and at our sole discretion, for your willful misconduct, malicious behavior, or your actual, apparent, threatened or alleged breach of Section 3 of these Terms; or (ii) your failure to make any necessary payments within ten (10) days of our written notice to you of your breach of payment obligations under this these Terms. In addition, either party may terminate this Agreement or any active Order Form or other ordering document by written notice to the other if the other party has failed to cure a material breach within thirty (30) days of receipt of notice of such breach. Upon termination: (i) we will cease providing you with the applicable Service and your access to such Service shall terminate; (ii) you will return to us all copies of any documentation and any other of our confidential information in your possession; and (iii) you will immediately pay all amounts owed. Upon termination of these Terms by you as set forth above due to a material breach by Promoboxx, Promoboxx will refund any prepaid and unused Subscription Fees (as defined in Section 17.4 below) for the Service as of the effective date of such termination.
17. Terms and Conditions Applicable to Brands. The following terms apply solely to Brands:
17.1 Compliance with Laws and Retailer Agreement(s). You acknowledge and agree that the Service enables you to develop and share your Campaigns online with your Retailers and that the Service provides no safeguards that ensure that you operate (or that Retailers participate in, customize, or share with consumers) any of your Campaigns properly or legally. You represent, warrant, and covenant that in using the Service and in creating, advertising, marketing and operating your Campaign(s), you will comply with all applicable laws, rules, regulations, and industry standards, including without limitation the Federal Trade Commission Act, Fair Credit Reporting Act, Equal Credit Opportunity Act, CAN-SPAM Act, or other laws that apply to commerce, the standards of the Mobile Marketing Association, and (except to the extent that these violate applicable law) your agreements with any Retailer or other third parties. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT THE SERVICE, AND ALL TOOLS AND RESOURCES MADE AVAILABLE THROUGH THE SERVICE, ARE PROVIDED FOR YOUR CONVENIENCE AND REFERENCE, BUT WITHOUT ANY WARRANTY THAT USING THE SERVICE, OR SUCH TOOLS OR RESOURCES, WILL COMPLY WITH THE LAW. THE LAWS REGARDING MARKETING CAMPAIGNS AND ADVERTISING VARY FROM STATE TO STATE AND COUNTRY TO COUNTRY; IT IS YOUR RESPONSIBILITY TO CONSIDER THE LAWS IN THOSE JURISDICTIONS IN WHICH YOU WILL OPERATE YOUR CAMPAIGN TO ENSURE THAT IT MEETS APPLICABLE LEGAL REQUIREMENTS. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT PROMOBOXX WILL HAVE NO LIABILITY FOR A CAMPAIGN’S FAILURE TO MEET SUCH REQUIREMENTS OR TO COMPLY WITH ANY APPLICABLE LAWS.
17.2. Access to Information and Data. Notwithstanding anything to the contrary herein, by using the Service and/or participating in a Campaign, you agree that Promoboxx may share with the respective Retailer(s) associated with your account campaign information that you have approved for distribution to such Retailer(s), the analytical ranking of respective Retailer(s) in comparison to other Retailer(s) associated with your account (assuming that you have enabled the Retailer(s) to view these analytics), divisional analytics (assuming that you have enabled the Retailer(s) to view these analytics), and aggregate Brand(s) performance benchmarking. In addition, you agree that (a) Promoboxx may show a Brand its respective performance benchmarked against other Brand(s) using the Service, and (b) Promoboxx may use Retailer specific information provided by you (“Retailer Specific Data”) for its business purposes. Other than User Data that is not Retailer Specific Data, any data or information provided, sourced, input, and/or created by us with respect to any Brand or Retailer may be freely shared and/or used by us, and as between you and us, shall be owned by us.
17.3 Subscription Term. As used herein, “Subscription Term” means the initial term of your subscription (the “Initial Term”), as specified on your Order Form(s), and each subsequent renewal term (each, a “Renewal Term”), (if any). Unless otherwise specified in the applicable Order Form, the Initial Term and any subsequent Renewal Term shall automatically renew for successive periods equal in length to the Initial Term, unless either party provides written notice of non-renewal at least ninety (90) days prior to the expiration of the Initial Term or then-current Renewal Term. Promoboxx fees associated with this contract are subject to change upon renewal.
17.4 Fees. As used herein, a “Retailer Account” is a single or multiple physical locations, that belongs to, or is operated by and under control of, a Retailer that has registered with Promoboxx to promote Subscriber’s content via the Service. Unless otherwise stated in the Order Form and except as set forth below, the applicable subscription fee associated with your use of the Service (the “Subscription Fee”) will remain fixed during the applicable Subscription Term unless you: (i) exceed the maximum Retailer Accounts included in your starting subscription tier, as specified in the Order Form, (ii) upgrade products or base packages specified in the Order Form by notifying us in writing or amending the Order Form, or (iii) subscribe to additional features or products in accordance with these Terms and the Order Form. Once increased as specified herein, your Subscription Fee will not decrease over the then-current Subscription Term, even if the number of Retailer Accounts associated with your account decreases. Starting with the first Renewal Term and continuing for the remainder of the Subscription Term, Promoboxx may increase the then-current Subscription Fee once per contract year; provided that, each such increase shall not exceed the percentage increase, if any, in the Consumer Price Index for all Urban Consumers (CPI-U), U.S. City Average for All Items, not seasonally adjusted (with series ID CUUR0000SA0), published by the US Department of Labor Bureau of Labor Statistics (see: https://www.bls.gov/news.release/cpi.t01.htm) (the “Index”). Each adjustment shall be calculated by comparing the most recently published monthly Index prior to the adjustment date (the “Reference Date Index”) with the Index for the same month in the preceding year (the “Base Date Index”). The difference between the Base Date Index and the Reference Date Index shall be divided by the Base Date Index (expressed as a percentage) to result in the percentage by which the then-existing fee is to be adjusted.
17.5 Payment Terms. You will be invoiced as set forth in the applicable Order Form. Unless otherwise specified in an Order Form, you will pay all invoices within thirty (30) days of the invoice date. All payments will be made in U.S. currency by check or wire transfer of immediately available funds to the account designated in writing by us. All payments are non-refundable. Any invoice not paid by you within thirty (30) days of the invoice date shall accrue interest until paid at a rate of one and one percent (1%) per month (twelve percent (12%) per annum) or the maximum rate permitted by law, whichever is less. If any amount is not paid when due hereunder, we will be entitled to recover from you the costs and expenses incurred in connection with collecting the same (including without limitation costs of investigation and attorney fees).
17.5.1 Advertising Funds. You may request that Promoboxx facilitate digital advertising with third parties on your behalf or on behalf of your Retailers. To do so, you will be required to provide us with funds to pay for that digital advertising and establish what we call an “Advertiser Balance”, which can be used to purchase advertisements on third-party platforms. If you decide to stop an advertising campaign, you are responsible for informing Promoboxx and we will use commercially reasonable efforts to promptly cease that advertising campaign. Please note that you are responsible for any payments for advertising campaigns that are made, even if that advertising occurs after your notice to Promoboxx, as it may take Promoboxx some time to stop an ongoing advertising campaign. If you establish an Advertiser Balance with us, you understand that funds in your Advertiser Balance may only be used for business or commercial purposes. Advertiser Balances are non-refundable, to the maximum extent permitted by applicable law. Promoboxx is not a bank and does not offer banking services. Therefore, Advertiser Balances do not earn interest, are not deposit obligations and are not insured by the Federal Deposit Insurance Corporation or any other scheme or entity.
17.6 Taxes. Fees charged do not include sales, use, value added, withholding, excise or similar tax. You will pay or, if paid by us, reimburse us, for all such taxes based on these Terms or fees payable hereunder (but not any taxes based upon our gross revenues or net income), together with any interest on such taxes if not attributable to our delay.
18. Terms and Conditions Applicable to Retailers. The following terms apply solely to Retailers:
18.1. Compliance with Laws and Brand Agreement(s). You acknowledge and agree that the Service enables you to participate in, customize (as permitted by the respective Brand), and share with consumers the Campaigns of your associated Brands online, and that the Service provides no safeguards that ensure that you or Brands operate (or that you or Brands participate in, customize, or share with consumers) a Campaign properly or legally. You represent, warrant, and covenant that in using the Service and in participating in, customizing (as permitted by the respective Brand), and sharing with consumers the Campaigns of your associated Brands, you will comply with all applicable laws, rules, regulations, and industry standards, including without limitation the Federal Trade Commission Act, Fair Credit Reporting Act, Equal Credit Opportunity Act, CAN-SPAM Act, or other laws that apply to commerce, the standards of the Mobile Marketing Association, and (except to the extent that these violate applicable law) your agreements with any Brand or other third parties. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT THE SERVICE, AND ALL TOOLS AND RESOURCES MADE AVAILABLE THROUGH THE SERVICE, ARE PROVIDED FOR YOUR CONVENIENCE AND REFERENCE, BUT WITHOUT ANY WARRANTY THAT USING THE SERVICE, OR SUCH TOOLS OR RESOURCES, WILL COMPLY WITH THE LAW. THE LAWS REGARDING MARKETING CAMPAIGNS AND ADVERTISING VARY FROM STATE TO STATE AND COUNTRY TO COUNTRY; IT IS YOUR RESPONSIBILITY TO CONSIDER THE LAWS IN THOSE JURISDICTIONS IN WHICH YOU WILL OPERATE YOUR CAMPAIGN TO ENSURE THAT IT MEETS APPLICABLE LEGAL REQUIREMENTS. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT PROMOBOXX WILL HAVE NO LIABILITY FOR A CAMPAIGN’S FAILURE TO MEET SUCH REQUIREMENTS OR TO COMPLY WITH ANY APPLICABLE LAWS.
18.2 Additional Right to Terminate. In addition to the termination rights specified in Section 16 above, Promoboxx may terminate your access to the Service, at any time, without prior notice, and at our sole discretion for any reason.
18.3 Access to Information and Data. Notwithstanding anything to the contrary herein, by using the Service and/or participating in, customizing, and/or sharing with consumers a Campaign, you agree that Promoboxx may share with the respective Brand(s) associated with your account all information and data concerning you and your activity on or in connection with the Service, and that of your consumers, as such information and data pertains to such respective Brand(s) . In addition, Promoboxx may show a Brand its respective performance benchmarked against other Brand(s) using the Service. To the extent that, in connection with the Service, you receive information and/or data from a Brand or concerning the activity of a Brand (collectively, “Brand Data”), you agree that you shall hold such Brand Data in confidence and that you shall not disclose or use on another’s behalf such Brand Data unless expressly permitted in writing by the Brand as to which such Brand Data relates. In addition, you agree that (i) we may use information provided by you that is generally available (such as name, address, etc.) (the “Retailer Provided Data”) for its business purposes, and (ii) other than User Data that does not include Retailer Provided Data, any data or information provided, sourced, input, and/or created by us with respect to any Brand or Retailer may be freely shared and/or used by us, and as between you and us, shall be owned by us.
19. Restricted Persons; Export.
You hereby represent and warrant that you are not a Restricted Person. For purposes of this Agreement, you are a “Restricted Person” if you or any officer, director, or controlling shareholder of the entity on behalf of which you are using the Site or the Service is (a) a national of or an entity existing under the laws of any country with which U.S. persons are prohibited from engaging in transactions, as may be determined from time to time by the U.S. Treasury Department; (b) designated as a Specially Designated National or institution of primary money laundering concern by the U.S. Treasury Department; (c) listed on the Denied Persons List or Entity List by the U.S. Commerce Department; (d) engaged in nuclear, missile, chemical or biological weapons activities to which U.S. persons may not contribute without a U.S. Government license; or (e) owned, controlled, or acting on behalf of a Restricted Person. If you become a Restricted Person during the term of this Agreement, you shall notify us within 24 hours, and we shall have the right to terminate any further obligations to you, effective immediately and with no further liability to you; provided, however, for the avoidance of doubt, you will remain liable to us for any outstanding obligations hereunder. You agree that you shall not utilize the Site or the Service to conduct or facilitate any transaction with any Restricted Person, except as may be expressly authorized in advance in writing by the U.S. Government. You may not remove or export from the United States or allow the export or re-export of the Site or the Service, or any direct product thereof, including technical data, in violation of any restrictions, laws, or regulations of the United States or any other applicable country.
20. Copyright Policy and Takedown Procedures; Copyright Agent
If you believe that any of the Content or materials appearing on or transmitted through the Service infringe your copyright or other intellectual property, please send a notice to us at the address specified in this section below. Your notice should contain the following: a physical or electronic signature of a person (i.e., the claimant) that is the copyright owner or authorized to act on behalf of the copyright owner; identification of the copyrighted work claimed to be infringed; identification of the content or material claimed to be infringing; a reference or link to the infringing material or activity, or the subject of the infringing activity, including information to enable us to locate that material or reference; the address, telephone number or email address of the claimant; a statement that the claimant has a good faith belief that complained of use of the material is not authorized by the copyright owner, its agent, or the law; and a statement that the information in the notice is accurate and indicating that “under penalty of perjury” the claimant is the copyright owner or authorized to act on the copyright owner’s behalf. Promoboxx maintains a policy to respond promptly to claims of copyright infringement, to remove, or disable access to, infringing material and to terminate use of our Service, or take other appropriate action, against repeat infringers. Promoboxx’s designated agent to receive notification of copyright issues relating to the Site or the Service is as follows:
Chief Executive Officer
Promoboxx, Inc.
500 Harrison Avenue, Studio 3R
Boston, MA 02118
Email: legal@promoboxx.com
Phone: 800-380-7502
Use this contact information solely for notices under this Copyright Policy. All other notices, comments, or other communications under this Agreement should be sent to the contact stated under “Communications” below.
21. Miscellaneous.
21.1 Communications. (i) all communications (except as noted under Copyright Policy) should be sent to: support@promoboxx.com. If you have any questions about this Agreement, or would like to report any inaccuracies or errors, please contact us by email at support@promoboxx.com (ii) we may include your name in our published client lists, but will not issue a press release or any other publicity referring specifically to you without your prior written consent.
21.2 Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy.
21.3 Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts. All legal actions in connection with the Agreement shall be brought in the state or federal courts located in Boston, Massachusetts.
21.4 Full Force and Effect and Further Assurances. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. You agree to execute any and all documents and take any other actions reasonably required to effectuate the purposes of this Agreement.
21.5 Assignment. You may not assign any of your rights hereunder. We may assign all rights to any other individual or entity in our sole discretion.
21.6 Force Majeure. We are not liable for any default or delay in the performance of any of our obligations under this Agreement if such default or delay is caused, directly or indirectly, by forces beyond our reasonable control, including fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for us to perform our obligations hereunder.
21.7 Third Parties; No Agency. Except as expressly set forth in this Agreement, nothing in this Agreement is intended to confer, nor shall anything herein confer, upon any person other than the parties and the respective permitted successors or assigns of the parties, any rights, remedies, obligations or liabilities whatsoever. Except as expressly set forth herein, no agency, partnership, joint venture, or employment is created as a result of this Agreement, and you do not have any authority of any kind to bind us in any respect whatsoever.
21.8 Attorney Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its costs and attorneys’ fees.
21.9 Headings. The heading of each section of this Agreement are for convenience only and have no legal or contractual effect.
