PLEASE READ THESE BUSINESS TERMS OF SERVICE CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING DAILYKARMA’S GIVING SUITE SHOPIFY APP, OR ANY OTHER APPLICATION OR SOFTWARE DAILYKARMA MAKES AVAILABLE FOR USE BY BUSINESSES OR BRANDS, IN CONNECTION WITH ITS GIVING SUITE SERVICE OR OTHERWISE. BY DOWNLOADING, INSTALLING OR USING DAILYKARMA’S GIVING SUITE SHOPIFY APP, OR EXECUTING AN ENROLLMENT, SUBSCRIPTION OR OTHER AGREEMENT WITH DAILYKARMA THAT SPECIFICALLY INCORPORATES THESE BUSINESS TERMS OF SERVICE, YOU ARE AGREEING TO THESE BUSINESS TERMS OF SERVICE.
WHERE USED BELOW, “AGREEMENT” MEANS THESE BUSINESS TERMS OF SERVICE OR, IF YOU HAVE EXECUTED AN ENROLLMENT, SUBSCRIPTION OR OTHER AGREEMENT WITH DAILYKARMA THAT SPECIFICALLY INCORPORATES THESE BUSINESS TERMS OF SERVICE, “AGREEMENT” MEANS THESE BUSINESS TERMS OF SERVICE PLUS THE TERMS OF THE ENROLLMENT, SUBSCRIPTION OR OTHER AGREEMENTAN BETWEEN YOU AND DAILYKARMA, INC.
1. THE DK PROGRAM
1.1 Giving Suite Program. DK has developed the “Giving Suite” program (“DK Program”) and software plugin (including any updates thereto, “DK Software”) to enable brands to offer the opportunity to their consumers to donate to a cause and in some cases receive a discount on the products of the brand.
2. INTELLECTUAL PROPERTY
2.1 Ownership of DK Software. As between DK and Company, DK is the sole owner of all rights, title and interest, including all intellectual property rights, in and to the DK Software, and any modifications, improvements or enhancements of the DK Software.
3. TERM AND TERMINATION
3.1 Term. You may terminate your participation in the DK Program and this Agreement at any time, for any reason, by written notice to us and uninstalling the DK Software. Similarly, we can terminate your participation and this Agreement at any time, for any reason, by written notice to you.
3.2 Effect of Termination. Upon expiration or termination of this Agreement for any reason, all rights granted to you under this Agreement will immediately terminate, and all rights granted by you to us also immediately terminate, except as provided below. Upon termination or expiration of this Agreement, or upon written request by us to you at any time, you will immediately destroy or return to DK, at your cost, and will not retain, any DK Software or confidential information or copies of DK Software or confidential information, and we will delete or return your confidential information.
3.3 Survival. The provisions of Sections 3.2, 3.3 and 4-8 will survive the termination or expiration of this Agreement for any reason.
4. CONFIDENTIALITY. Each party acknowledges and agrees that it may learn Confidential Information of the other in connection with this Agreement. Each party agrees not to disclose such Confidential Information to others, without the prior written consent of the disclosing party, to hold the Confidential Information in confidence using at least the same degree of care used to protect the receiving party’s own Confidential Information of like nature and importance, but no less than a reasonable degree of care, and not to use the Confidential Information for any purpose other than those expressly permitted by this Agreement. “Confidential Information” means this Agreement and its terms, and all other technical, business, product, marketing and financial information and data provided orally, in writing, or by inspection of tangible objects provided or disclosed under or pursuant to this Agreement. Confidential Information does not include information that (i) has become generally publicly known without any improper action or inaction; (ii) was in the rightful possession of the recipient without any obligation of confidentiality; (iii) was rightfully disclosed by a third party without restriction on disclosure; (iv) is independently developed by the receiving party; or(v) is disclosed if required by law or court order (but only to the extent of such disclosure), provided that the recipient will make reasonable efforts to give the disclosing party prior notice of the law or court order and cooperate with any attempts to obtain a protective order or similar treatment.
5. Your Information. DK may collect personal information provided directly by you or your authorized users to DK. DK does not collect information automatically from the DK Software except for purposes of processing donations and will seek optional explicit consent from consumers before collecting information for any other purpose from your consumers. DK may use the information provided by you and your authorized users to communicate with you and your authorized users, to improve its products and services and to facilitate the provision of services to you. You consent to DK’s collection and use of the information and, if you are located outside the United States, you consent to the transfer and processing of this information to and inside the United States of America. You represent that you have obtained all consents and permits necessary under applicable law to disclose your authorized users’ information to DK for these permitted uses, and to the processing and transfer of the information. You consent to the transfer of any information collected by DK in accordance with this Agreement in connection with any permitted assignment of this Agreement by DK under Section 8.1.
6. WARRANTY DISCLAIMER. Company will be solely responsible for integration of the DK Software into its website, mobile application or other online properties. THE DK SOFTWARE AND ANY DK SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. DK MAKES NO, AND HEREBY DISCLAIMS TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, REPRESENTATIONS, PROMISES, OR WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE DK SOFTWARE OR ANY DK SERVICES, INCLUDING ITS OR THEIR CONDITION, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, OR THE EXISTENCE OF ANY LATENT DEFECTS, AND DK SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE AND ALL OTHER IMPLIED OR STATUTORY WARRANTIES, AS WELL AS ANY LOCAL JURISDICTIONAL ANALOGUES TO THE ABOVE. DK DOES NOT WARRANT THAT THE DK SOFTWARE OR ANY SERVICES WILL BE ERROR-FREE OR THAT IT OR THEY WILL WORK WITHOUT INTERRUPTIONS.
7. LIMITATION OF LIABILITY. IN NO EVENT WILL DK’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED ONE HUNDRED DOLLARS. EXCEPT FOR A BREACH OF THE LICENSE RESTRICTIONS OR CONFIDENTIALITY OBLIGATIONS, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF ANTICIPATED PROFITS OR LOSS OR INTERRUPTION OF USE OF ANY FILES, DATA OR EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK UNDER THIS AGREEMENT.
8.1 Publicity. DK may include your name and logo (if applicable) in materials for current or prospective investors, in promotional material, and on DK’s website or subsites.
8.2 Assignment. You may not assign this Agreement or any rights or obligations under it, directly or indirectly, by operation of law or otherwise, without the prior written consent of DK. DK will have the right to assign this Agreement without your consent in connection with a sale or transfer of all or substantially all of its business or assets to which this Agreement relates, whether by sale, merger, operation of law or otherwise. In the event of a permitted assignment, this Agreement will inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns. Any attempted assignment in violation of this Section will be null and void.
8.3 Remedy. If you breach, or threaten to breach this Agreement, or DK breaches, or threatens to breach, the confidentiality provisions of this Agreement, each party agrees that the non-breaching party would suffer substantial injury and may have no adequate remedy at law and would therefore be entitled to, in addition to all other remedies which may be available to it under law, immediate injunctive and other equitable relief, without bond and without the necessity of showing actual money damages.
8.4 Waiver; Severability. If one party breaches this Agreement, the failure of the other party to enforce any rights under this Agreement will not be deemed a waiver of any of its rights. The rights and remedies of the parties as set forth in this Agreement are not exclusive and are in addition to any other rights and remedies provided by law. In addition, if any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law the remaining provisions of this Agreement will remain in full force and effect.
8.5 Governing Law and Jurisdiction. This Agreement will be exclusively governed by and construed under the laws of the State of California without reference to conflict of laws principles. All disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in Los Angeles, California, and the parties agree and submit to the exclusive jurisdiction and venue of these courts.
8.6 Relationship of the Parties. This Agreement does not create any agency, partnership or joint venture relationship between DK and you. Nothing in this Agreement will in any way be construed to constitute you as an agent, employee or representative of DK, but Company will carry out its obligations under this Agreement as an independent contractor.
8.7 Notice. Any required notice will be given in writing by customary means with receipt confirmed at the address of each party set forth below, or to such other address as either party may substitute by written notice to the other.
8.8 Entire Agreement. This Agreement embodies the entire understanding of the parties and supersedes any previous or contemporaneous communications, whether oral or written (including any previously executed Non-Disclosure Agreements) and may be amended only by a writing signed (including by facsimile, e-signature or scanned signature) by authorized representatives of both parties.