RETENTION SCIENCE – TERMS AND CONDITIONS
WaJao, Inc. is referred to herein as “Retention Science”. Licensee is referred to herein as “Partner.” Retention Science and Partner are each referred to herein as a “Party” and collectively as the “Parties”.
1. Definitions. For purposes of this Agreement, certain terms will have the meanings ascribed to them in this section.
1.1 “Retention Science Admin Console” means the web based administrative console, provided and hosted by Retention Science, that allows Partner to access and view the Retention Science Data.
1.2 “Retention Science API” means the application program interface(s) described in the Retention Science License Agreement and/or provided by Retention Science to Partner hereunder.
1.3 “Retention Science Content” means any content provided by Retention Science under this Agreement, including without limitation images, text, creative, audio, video, internet links, software, and messaging, but excluding the Partner Content.
1.4 “Retention Science Data” means data relating to the use of the Retention Science Platform such as Partner customer information, timing optimization information, and other similar information collected by Retention Science and made available to Partner via the Retention Science Platform. Retention Science Data will be made available via API and the Retention Science Admin Console.
1.5 “Retention Science Marks” means all trademarks, service marks, trade dress, trade names, domain names, corporate names, brand names, proprietary logos, symbols, artwork, all other indicia of origin, all applications to register and registrations for the foregoing, and any renewals therefore, under which Retention Science offers its products or services.
1.6 “Retention Science Platform” means the online service operated by Retention Science which permits Users to manage marketing campaigns incorporating timing optimization, dynamic offers, subject line A/B testing, smart segmentation, product recommendations, life-cycle marketing management, real-time abandon cart campaigns, onsite offers, mobile offers, mobile product recommendations, and onsite product recommendations through the Partners Marketing Channels. The Retention Science Platform includes without limitation access to Retention Science API, the Retention Science Data, Retention Science Analytics, and the Retention Science Admin Console.
1.7 “Retention Science User” means an individual who utilizes the Retention Science Platform and Admin Console to manage marketing campaigns via Partner Marketing Channels.
1.8 “Confidential Information” means any information disclosed by one Party to the other that is either non-public, confidential or proprietary in nature, including without limitation, information related to any research, products, services, customers, markets, concepts, software, developments, inventions, processes, designs, engineering or marketing plans, or any other information that, by the nature of the circumstances surrounding its disclosure, ought in good faith to be treated as confidential. Partner’s customer data is explicitly owned by the Partner and is strictly held confidential and will never be shared with any third party. Without limiting the foregoing, the terms of this Agreement, the Retention Science Data (as defined in Section 3.3), and all non-public aspects of the Retention Science Platform shall be the Confidential Information of Retention Science.
1.9 “Intellectual Property Rights” means all rights in, to, or arising out of: (i) any U.S., international or foreign patent or any application therefore and any and all reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof; (ii) inventions (whether patentable or not in any country), invention disclosures, improvements, trade secrets, proprietary information, know-how, technology and technical data; (iii) copyrights, copyright registrations, mask works, mask works registrations, applications, moral rights, trademarks, service marks, trade dress, and rights of personality, privacy and likeness, whether arising by operation of law, contract, license or otherwise; and (iv) any other similar or equivalent proprietary rights anywhere in the world.
1.10 “Partner Content” means any content provided by Partner to Retention Science under this Agreement, including without limitation email templates, logos, text, creative, audio, video, internet links, software, and messaging.
1.11 “Partner Marks” means all trademarks, service marks, trade dress, trade names, domain names, corporate names, brand names, proprietary logos, symbols, artwork, all other indicia of origin, all applications to register and registrations for the foregoing, and any renewals therefore, under which Partner offers its products or services.
1.12 “Partner Marketing Channels” means any channel owned and operated by Partner leveraging the Retention Science Platform for campaigns. This includes, but is not limited to, email service provider, website, storefront, mobile applications. The Retention Science Platform may only be used on Partner Channels unless the Parties agree otherwise in writing.
2. Mutual Responsibilities of the Parties.
2.1 Integration and Customization of the Retention Science Platform. Retention Science and Partner will cooperate, mutually agree on, and jointly implement the integration of the Retention Science Platform with the Partner infrastructure, including website, mobile app, and / or email service provider in order to create highly targeted marketing campaigns.
3. Retention Science Responsibilities.
3.1 Retention Science API. Retention Science will provide the Retention Science API and host and maintain the Retention Science Platform.
3.2 Retention Science Platform. Retention Science will host and maintain the Retention Science Platform.
3.3 Retention Science Admin Console. Retention Science shall provide and host the Retention Science Admin Console, which will allow Partner to access, view, and manage campaigns via the Retention Science Service on an as-needed basis.
3.4 Retention Science Uptime Guarantee. Retention Science guarantees uptime of 99% monthly. Shall the downtime exceed 1% monthly, Retention Science will pro-rate the monthly service fee (or credited toward future month). Uptime applies 24×7, 52 weeks a year, and is monitored ongoingly. Changes to services will be communicated and documented to all stakeholders one (1) week in advance of change.
4. Partner Responsibilities.
4.1 Partner Channels and Content. Partner shall provide, host and maintain the Partner Marketing Channels and shall be responsible for all content creation.
5.1 Fees. In consideration for the services provided by Retention Science hereunder, Partner agrees to pay Retention Science the fees set forth in the Retention Science Order Form (the “Fees”). All Fees are non-refundable.
5.2 Payment Terms. Partner shall pay Retention Science the Fees within thirty (30) days of invoice by wire transfer / ACH or other method mutually acceptable to the Parties.
5.3 Overdue Charges. If any invoiced amount is not received by Retention Science by the due date, then without limiting Retention Science’s rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.
5.4 Suspension of Service and Acceleration. If any charge owing by Partner under this or any other agreement for services is 30 days or more overdue, Retention Science may, without limiting its other rights and remedies, accelerate Partner’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full, provided that, Retention Science will give Customer at least 10 days’ prior notice that its account is overdue before suspending services to Customer.
5.5 Payment Disputes. Retention Science will not exercise its rights under the “Overdue Charges” or “Suspension of Service and Acceleration” section above if Partner is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
5.6 Taxes. All Fees are exclusive of, and Partner shall pay, all taxes, duties, and assessments, however designated, which are levied or imposed upon such Fees, excluding only taxes based on Retention Science’s net income. Partner agrees to indemnify, defend, and hold Retention Science, its officers, directors, consultants, employees, successors and assigns harmless from all claims and liability arising from Partner’s failure to report or pay any such taxes, duties or assessments as may be required by law.
6. Term and Termination.
6.1 Term. Unless earlier terminated as provided in this Section 6, this Agreement will be in effect for the term specified in the Retention Science Order Form.
6.2.1 By Either Party. This Agreement may be terminated by either Party upon delivery of written notice of termination to the other Party, as follows:
(a) if the other Party fails to perform or observe any material term or condition in this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of such breach from the non-breaching Party; or
(b) if the other Party (i) makes a general assignment for the benefit of creditors, (ii) admits in writing its inability to pay debts as they come due, (iii) voluntarily files a petition or similar document initiating any bankruptcy or reorganization proceeding, or (iv) involuntarily becomes the subject of a petition in bankruptcy or reorganization proceeding and such proceeding shall not have been dismissed or stayed within sixty (60) days after such filing.
6.2.2 Retention Science reserves the right to immediately terminate this Agreement or suspend performance hereunder, in each case without penalty or refund of any kind whatsoever, if it reasonably suspects or learns that Partner or the Partner Marketing Channels are infringing on the Intellectual Property rights of Retention Science or any third party.
6.2.3 Effect of Termination.
(a) The following Sections shall survive termination or expiration of this Agreement for any reason: Sections 1, 5 (to the extent payment obligations accrued during the Term), 6.2.3, 8, 9.2, and 10-13.
(b) All other rights and obligations of the Parties under this Agreement shall expire upon termination or expiration of this Agreement.
7.1 API License. Subject to the terms and conditions of this Agreement, Retention Science hereby grants Partner a non-exclusive, non-transferable (except as otherwise provided herein), license during the Term to use the Retention Science API solely for the purpose of developing and managing marketing campaigns through the Partner Marketing Channels and the Retention Science Platform as contemplated in this Agreement.
7.2 Retention Science Data License. Subject to the terms and conditions of this Agreement, Retention Science hereby grants Partner a non-exclusive, non-transferable (except as otherwise provided herein), license during the Term to access the Retention Science Data solely through the Retention Science Admin Console and / or the Retention Science API.
7.3 License Restrictions. Partner shall not (a) reverse engineer, disassemble, decompile, or otherwise attempt to discover the source code for Retention Science’s API, sites, services, or technology; or (b) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Retention Science Content or Retention Science Visuals. Partner shall not retain any copies of the Retention Science Visuals.
7.4 The Partner Marketing Channels shall not contain or promote any products, services, or materials that constitute, promote or are used for the purpose of dealing in: malicious computer programs or code, counterfeit goods, items subject to U.S. embargo, hate materials or materials urging acts of violence, goods made from protected animal/plant species, recalled goods, hacking, surveillance, interception, or descrambling equipment, cigarettes, illegal goods or activities, police items, unlicensed trade or dealing in stocks and securities, gambling items, professional services regulated by state licensing regimes, non-transferable items such as airline tickets or event tickets, non-packaged food items, or weapons or weapon accessories.
8.1 By Partner. Retention Science acknowledges and agrees that, as between Partner and Retention Science, Partner owns all right, title, and interest in and to the Partner Marketing Channels (excluding the Retention Science Content and Retention Science Marks), Partner Marks, Partner Content, (collectively the “Partner Property”) and the Intellectual Property Rights therein, and nothing in this Agreement will confer on Retention Science any right of ownership or interest in the Partner Property.
8.2 By Retention Science. Partner acknowledges and agrees that, as between Partner and Retention Science, Retention Science owns all right, title, and interest in and to the Retention Science Service (excluding the Partner Content and Partner Marks), Retention Science Marks, Retention Science Content, Retention Science Data, (collectively the “Retention Science Property”) and the Intellectual Property Rights therein, and nothing in this Agreement will confer on Partner any right of ownership or interest in the Retention Science Property. The Parties further agree that all right, title, and interest in and to any joint works created under the Agreement, excluding the Partner Content and Partner Marks, shall vest in and be assigned to Retention Science, and to the extent any such rights vest in Partner, Partner hereby assigns all such rights, title and interest to Retention Science.
8.3 Reservation of Rights. Each Party acknowledges that it obtains no Intellectual Property Rights or licenses by this Agreement except for those expressly granted herein.
9. Representations and Warranties.
9.1 Each Party represents and warrants that: (i) it has full power and authority to enter into this Agreement, perform all of its obligations hereunder, and grant the licenses it grants hereunder; and (ii) its entry into and performance under this Agreement does not and will not violate any applicable laws, rules, regulations, orders or agreements by which it is bound.
9.2 DISCLAIMER OF OTHER WARRANTIES. EXCEPT AS EXPRESSLY STATED IN THIS SECTION 9, (I) NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO SUCH PARTY’S NETWORK, SERVICE, TECHNOLOGY, CONTENT, OR MARKS PROVIDED UNDER THIS AGREEMENT, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER ALLEGED TO ARISE BY LAW, BY USAGE IN THE TRADE, BY COURSE OF DEALING OR COURSE OF PERFORMANCE; AND (II) EACH PARTY ACKNOWLEDGES THAT THE OTHER PARTY’S NETWORK, SERVICE, TECHNOLOGY, CONTENT AND MARKS ARE PROVIDED “AS IS” AND THAT THE OTHER PARTY MAKES NO WARRANTY THAT THE FOREGOING ITEMS WILL BE FREE FROM BUGS, FAULTS, DEFECTS, OR ERRORS OR THAT ACCESS TO ITS NETWORK OR SERVICE WILL BE UNINTERRUPTED.
10.1 Nondisclosure. Each Party (each a “Receiving Party”) agrees that it shall use and reproduce the Confidential Information of the other Party (the “Disclosing Party”) only for purposes of exercising its rights and performing its obligations under this Agreement and only to the extent necessary for such purposes and shall restrict disclosure of such Confidential Information to the Receiving Party’s employees, consultants, or advisors who have a need to know and shall not disclose such Confidential Information to any third party without the prior written approval of the Disclosing Party. The foregoing obligations shall be satisfied by the Receiving Party through the exercise of at least the same degree of care used to restrict disclosure and use of its own information of like importance, but not less than reasonable care. All third parties to whom the Receiving Party discloses Confidential Information must be bound in writing by obligations of confidentiality and non-use at least as protective of such information as this Agreement. Notwithstanding the foregoing, it shall not be a breach of this Agreement for the Receiving Party to disclose Confidential Information if compelled to do so under law, in a judicial or other governmental investigation or proceeding, provided that, to the extent permitted by law, the Receiving Party has given the Disclosing Party prior notice and reasonable assistance to permit the Disclosing Party a reasonable opportunity to object to and/or limit the judicial or governmental requirement to disclosure.
10.2 Exceptions. Notwithstanding anything to the contrary herein, neither Party shall be liable for using or disclosing information that such Party can prove: (i) was in the public domain at the time it was disclosed or has entered the public domain through no fault of the Receiving Party; (ii) was known to the Receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) is disclosed with the prior written approval of the Disclosing Party; (iv) was independently developed by the Receiving Party without any use of the Confidential Information, as demonstrated by files created at the time of such independent development; (v) becomes known to the Receiving Party, without restriction, from a source other than the Disclosing Party without breach of this Agreement by the Receiving Party and otherwise not in violation of the Disclosing Party’s rights; or (vi) is disclosed generally to third parties by the Disclosing Party without restrictions similar to those contained in this Agreement.
10.3 Equitable Relief. The Receiving Party agrees that a breach of this Section 10 may result in immediate and irreparable harm to the Disclosing Party that money damages alone may be inadequate to compensate. Therefore, in the event of such a breach, the Disclosing Party will be entitled to seek equitable relief, including but not limited to a temporary restraining order, temporary injunction or permanent injunction without the posting of a bond or other security.
11. Limitation on Damages.
11.1 EXCLUSION OF INCIDENTAL AND CONSEQUENTIAL DAMAGES. EXCEPT FOR THIRD-PARTY DAMAGES INDEMNIFIED HEREUNDER AND BREACHES OF CONFIDENTIALITY OBLIGATIONS, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, WARRANTY, OR OTHERWISE.
11.2 MAXIMUM AGGREGATE LIABILITY. EXCEPT FOR THIRD-PARTY DAMAGES INDEMNIFIED HEREUNDER AND BREACHES OF CONFIDENTIALITY OBLIGATIONS, THE MAXIMUM LIABILITY OF EITHER PARTY FOR ANY CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE CUMULATIVE AMOUNT PAID TO RETENTION SCIENCE BY PARTNER HEREUNDER. THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
12.1 Each Party shall indemnify, defend, and hold harmless the other Party and its officers, directors, consultants, employees, successors and permitted assigns from and against any damages, losses, and expenses (including reasonable attorneys’ fees), as a result of any third-party claim, demand or action (collectively, a “Claim”) arising from a breach or alleged breach of its representations or warranties herein. Retention Science shall indemnify, defend and hold harmless Partner and its officers, directors, consultants, employees, successors and permitted assigns from and against any Claims arising from infringement or alleged infringement of any third party Intellectual Property Right only with respect to the technology underlying the Retention Science Service. Partner shall indemnify, defend and hold harmless Retention Science and its officers, directors, consultants, employees, successors and permitted assigns from and against any Claims arising from (i) infringement or alleged infringement of any third party Intellectual Property Right, only with respect to the Partner Marketing Channels (excluding the Retention Science Content and Retention Science Marks), Partner Content, and/or Partner Marks; or (ii) any alleged or actual product liability, property damage, or physical injuries relating to the Partner Goods or Retention Science User access to any premise upon which Partner Goods are redeemed under this Agreement.
12.2 Procedure. The indemnified Party shall promptly notify the indemnifying Party in writing of any such Claim; provided that the failure to provide such notice shall not relieve the indemnifying Party of its indemnification obligations hereunder except to the extent of any material prejudice directly resulting from such failure. The indemnifying Party shall have the right to solely control the defense (including any settlements) of any such Claim at its expense; provided, however, that (i) the indemnifying Party shall keep the indemnified Party informed of, and consult with the indemnified Party in connection with the progress of such litigation or settlement and (ii) the indemnifying Party shall not enter into any claim resolution or settlement that effects the indemnified party’s rights or interest without the indemnified Party’s prior written consent, not to be unreasonably withheld or delayed.
13.1 Assignment. Neither Party may assign, sublicense, delegate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other Party, which may not be unreasonably withheld. Notwithstanding the foregoing, either Party may, without the consent of the other Party, assign this Agreement to an entity merging with, consolidating with, or purchasing substantially all its assets or stock, provided that the assignee shall assume all rights and obligations under this Agreement. Any permitted assignment of this Agreement shall be binding upon and enforceable by and against the Parties’ successors and assigns, provided that any unauthorized assignment shall be null and void and constitute a breach of this Agreement.
13.2 Entire Agreement. This Agreement, and any exhibits and amendments thereto, constitute the entire agreement between the Parties and supersede all previous agreements, oral or written, with respect to the subject matter of this Agreement. This Agreement may not be amended without the prior written consent of both Parties.
13.3 Force Majeure. Except for payment obligations, if either Party is prevented from performing or is unable to perform any of its obligations under this Agreement due to causes beyond the reasonable control of the Party invoking this provision, including but not limited to acts of God, acts of civil or military authorities, riots or civil disobedience, wars, strikes or labor disputes (each, a “Force Majeure Event”), such Party’s performance shall be excused and the time for performance shall be extended accordingly provided that the Party immediately takes and continues to take all reasonably necessary steps to resume full performance.
13.4 Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the state of California without giving effect to its conflicts of law rules. Each of the Parties to this Agreement consents to the exclusive jurisdiction and venue of the state and federal courts of Los Angeles County, California.
13.5 Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered in person (including by overnight courier) or three business days after being mailed by registered or certified mail (postage prepaid, return receipt requested), and on the business day the notice is sent when sent by verified facsimile, in each case to the respective Parties at the address first set forth hereto. Either Party may change its contact information by providing the other Party with notice of the change in accordance with this Section 14.5.
13.6 Relationship of Parties. The Parties are independent contractors and will have no right to assume or create any obligation or responsibility on behalf of the other Party. Neither Party shall hold itself out as an agent of the other Party. This Agreement will not be construed to create or imply any partnership, agency, joint venture or formal business entity of any kind.
13.7 Severability. If any provision of this Agreement is held invalid or unenforceable, it shall be replaced with the valid provision that most closely reflects the intent of the Parties and the remaining provisions of the Agreement will remain in full force and effect.
13.8 Waiver. No delay or failure by either Party to exercise any right or remedy under this Agreement will constitute a waiver of such right or remedy. All waivers must be in writing and signed by an authorized representative of the Party waiving its rights. A waiver by any Party of any breach or covenant shall not be construed as a waiver of any succeeding breach of any other covenant.
13.9 Headings. The headings of the articles and paragraphs contained in this Agreement are inserted for convenience and are not intended to be part of or to affect the interpretation of this Agreement.
13.10 Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original and all of which together will constitute one instrument.