End User License Agreement
IMPORTANT - READ CAREFULLY BEFORE INSTALLING, ACCESSING OR OTHERWISE USING THE MOBILE APPLICATION, THE WEBSITE LOCATED AT WWW.OVATIONCXM.COM, OR ANY SOFTWARE, CONTENT, DATA, INFORMATION, SERVICES, PRODUCTS OR OTHER ITEMS PROVIDED BY OR IN CONNECTION WITH THE MOBILE APPLICATION OR THE WEBSITE, IN ANY MANNER. IF YOU OR YOUR COMPANY HAS A MASTER SUBSCRIPTION AGREEMENT OR SIMILAR AGREEMENT WITH OVATIONCXM, THE TERMS OF THIS END USER LICENSE AGREEMENT SHALL NOT APPLY UNLESS OTHERWISE STATED IN THE MASTER SUBSCRIPTION AGREEMENT OR SIMILAR AGREEMENT.
This End User License Agreement (this “EULA”) constitutes an agreement between you (the “User”) and Boomtown Network, Inc. dba OvationCXM, a Delaware corporation with its principal place of business at 1622 Tiburon Boulevard, Tiburon, California, 94920 (“OvationCXM”, “we”, or “us”) (each a “Party” and collectively, the “Parties”). You must read, agree with and accept all of the terms and conditions contained in this EULA in order to use the mobile application (the “Application”), our website located at www.ovationcxm.com (the “Site”) and any software, content, data, information, services, products or other items provided directly and specifically by OvationCXM and made accessible to you through the Application and/or the Site (together with the Site and Application, “OvationCXM Services”), and any other software, content, data, information, services, products or other items provided by third parties and made accessible to you through the Application and/or the Site (“Third Party Services”). For the avoidance of doubt, the OvationCXM Services include services provided by OvationCXM as described in Sections 2(a), 2(b) and 2(c), OvationCXM Support Services (defined in Section 2(d)) and OvationCXM Content, and Third Party Services include Third Party Support Services (defined in Section 2(a)), Third Party Products (defined in Section 2(c)), and Third Party Content (defined in Section 7(b)). Your use of the OvationCXM Services and Third Party Services shall be and shall be deemed to be your acceptance of this EULA. OvationCXM, in its sole discretion, may change, modify, add or remove any portion of the OvationCXM Services, Third Party Services or this EULA, in whole or in part, at any time. Each revised version will state its effective date, which will be on or after the date posted by OvationCXM. You agree to review this EULA periodically to be aware of any changes. Your continued use of the OvationCXM Services and Third Party Services after the effective date of a revised version of this EULA shall be and shall be deemed to be your acceptance of the revised terms. In the event of a conflict between any other agreements and polices referred to herein and this EULA, this EULA controls. Capitalized terms used in this EULA are defined in Section 1 or otherwise throughout this EULA.
a. “Agreement” means this EULA and any and all other agreements and policies referenced herein.
b. “OvationCXM Content” means any Content owned or licensed by OvationCXM and provided to you directly from OvationCXM through your use of the Application and/or the Site including, without limitation, Third Party Product Information.
c. “Content” means any content featured or displayed including, but not limited to, logos, icons, text, graphics, photographs, images, moving images, sound, illustrations, music and other works of authorship, software (excluding the Application), opinion, remarks, comments, artwork, links, questions, suggestions, information or other materials.
d. “Services” means collectively, OvationCXM Services and Third Party Services.
e. “Third Party Provider” means a third party technician who can respond to a request for and provide Third Party Support Services and other Third Party Services.
f. “User Content” means any Content that is submitted, posted, displayed, transmitted, distributed or provided on or through the Application or the Site by you or is otherwise collected through your use of the Services including, without limitation, technical data and related information about your device, system and application software, and peripherals, geolocation, Point-of-Sale (“POS”) location details such as number of checkout terminals and total square feet, loading inventory, tax rates and IP address(es).
2. Description of Services.
a. OvationCXM offers a means for you to obtain on-site and off-site technical support services including, without limitation, a local support dispatch, consultation, site survey, installation, troubleshooting, remote monitoring and repair (“Third Party Support Services”) and other Third Party Services from Third Party Providers, which can be requested through the use of the Application supplied by OvationCXM and downloaded and installed by you on your mobile device or tablet or the Site pursuant to the terms and conditions of this EULA. The Application may allow you to monitor some of your IT systems including, without limitation, POS software, physical network, wireless networks, data service provider, PSP, access points, routers, tablets, PC, dedicated devices, and SaaS apps, identify technical problems, order Third Party Support Services and other Third Party Services from a Third Party Provider, and send and receive communications to and from OvationCXM and a Third Party Provider. The Third Party Provider, in its sole discretion, may accept or reject each request for Third Party Services. If the Third Party Provider accepts a request, the Application notifies you and provides information regarding the Third Party Provider including his or her name, photo, telephone number, qualifications and badges, and customer service rating. OvationCXM shall use reasonable efforts to bring you in contact with a Third Party Provider in order to obtain Third Party Services subject to the availability of a Third Party Provider. OvationCXM does not itself provide Third Party Support Services and any other Third Party Services and does not employ or is not otherwise responsible for any Third Party Provider. For clarification, no Third Party Provider is an agent of or has any authority to act on behalf of or bind OvationCXM nor is OvationCXM is an agent of or has authority to act on behalf of or bind Third Party Provider. It is up to the Third Party Provider to offer Third Party Support Services and any other Third Party Services, which may be requested through the use of the Application and/or the Site. OvationCXM only acts as intermediary between you and the Third Party Provider. The provision of Third Party Services by Third Party Providers to you is therefore subject to the agreement (to be) entered into between you and the Third Party Provider and OvationCXM shall never be a party to such agreement.
b. OvationCXM may provide information, reviews or opinions on certain third party products and services (“Third Party Product Information”) for a fee collected from vendors of such third party products or services (“Third Party Vendors”) to you through the Application and/or the Site. Such provision of Third Party Product Information is for general information, discussion and reference purposes only. YOUR RELIANCE ON ANY THIRD PARTY PRODUCT INFORMATION IS AT YOUR OWN RISK AND OVATIONCXM HAS NO LIABILITY TO YOU FOR THE CONSEQUENCES OF RELYING ON SUCH INFORMATION.
c. OvationCXM may resell products or services of Third Party Vendors (“Third Party Products”) to you through the Application and/or the Site. YOUR PURCHASE AND USE OF THIRD PARTY PRODUCTS ARE AT YOUR OWN RISK AND OVATIONCXM HAS NO LIABILITY TO YOU FOR THE CONSEQUENCES OF PURCHASING AND USING SUCH PRODUCTS. OvationCXM has no control over any Third Party Products you may obtain using the Application and is not responsible for the practices of any third party. Any complaints or issues relating to the Third Party Products should be submitted directly to the Third Party Vendors.
d. OvationCXM may also directly provide you with on-site and off-site technical support services including, without limitation, a local support dispatch, consultation, site survey, installation, troubleshooting, remote monitoring and repair which can be requested through the use of the Application supplied by OvationCXM and downloaded and installed by you on your mobile device or tablet pursuant to the terms and conditions of this EULA. The Application may allow you to monitor some of your IT systems including, without limitation, POS software, physical network, wireless networks, data service provider, PSP, access points, routers, tablets, PC, dedicated devices, and SaaS apps, identify technical problems, order OvationCXM Support Services (defined below), and send and receive communications to and from OvationCXM. Once you sign the Form of Authorization, OvationCXM may directly contact your ISP, Payment Processor or any other third party IT vendors or service providers on your behalf to report the issue and help troubleshoot and attempt to resolve the issue. Technical support services described in this Subsection d shall be collectively referred to as “OvationCXM Support Services.” Unless expressly and explicitly identified as OvationCXM Support Services under this EULA, any technical support services requested by you through the Application or the Site shall be considered Third Party Support Services. OvationCXM, in its sole discretion, may accept or reject each request for OvationCXM Support Services and, in the event it accepts, OvationCXM will use commercially reasonable efforts to provide the OvationCXM Support Services to you. If OvationCXM fails to perform the OvationCXM Support Services, as your sole and exclusive remedy, OvationCXM, at its option and in it sole discretion, will either use commercially reasonable efforts to re-perform the OvationCXM Support Services or provide you with a refund of the Fees paid for the month in which the non-performance occurred on a pro-rated basis.
3. Use of the Application or Other OvationCXM Services.
You warrant that the information you provide to OvationCXM is accurate and complete. OvationCXM is entitled at all times to verify the information that you have provided and to refuse use of the Application or other OvationCXM Services without providing reasons.
You may only access the Application and other OvationCXM Services using legal or other authorized means. It is your responsibility to check to ensure you download the correct Application for your device. OvationCXM is not liable if you do not have a compatible mobile device or if you download the wrong version of the Application for your mobile device. OvationCXM reserves the right to terminate the OvationCXM Services including, without limitation, the use of the Application should you be using the Application with an incompatible or unauthorized device.
By using the Application and other OvationCXM Services, you further agree that:
· You will only download the Application and use other OvationCXM Services for your sole, personal use and will not resell the Application or other OvationCXM Services to a third party;
· You will not authorize others to use your account;
· You will not assign or otherwise transfer your account to any other person or legal entity;
· You will not use an account that is subject to any rights of a person other than you without appropriate authorization;
· You will not use the Application or other OvationCXM Services for unlawful purposes including, but not limited, to sending or storing any unlawful material or for fraudulent purposes;
· You will not use the Application or other OvationCXM Services to cause nuisance, annoyance or inconvenience;
· You will not impair the proper operation of the network;
· You will not try to harm Application or other OvationCXM Services in any way whatsoever;
· You will not copy or distribute the Application or OvationCXM Content without written permission from OvationCXM;
· You will keep secure and confidential your account password or any identification we provide you which allows access to the Application or other OvationCXM Services;
· You will provide us with whatever proof of identity we may reasonably request;
· You will only use an access point or cellular data account (AP) which you are authorized to use;
· You are aware that when requesting technical support services by SMS (if available in your jurisdiction), standard messaging charges will apply;
· You will not use the Application or other OvationCXM Services with an incompatible or unauthorized device;
· You will comply with all applicable national and local laws and regulations of the country, state or province, and county, city or any municipality in which you reside as well as any nation, state or province, county, city or other municipality in which you are using the Application or other OvationCXM Services.
OvationCXM reserves the right to immediately terminate the use of the Application and other OvationCXM Services should you not comply with any of the above rules.
4. Fees and Payments.
a. Fees. In consideration of your use of the Services, you agree to pay OvationCXM all subscription fees, services fees, and any other fees and charges which OvationCXM may now or in the future charge you in connection or associated with your use of the Services, and any modifications or additions thereto (collectively, “Fees”). All Fees are exclusive of any applicable taxes and other charges of any kind (unless otherwise expressly stated herein) and the User is solely responsible for the payment of any taxes or other charges which may be imposed on your use of the Services (other than taxes based on OvationCXM’s income, which shall be paid by OvationCXM). All Fees are nonrefundable except as otherwise expressly stated herein. The Fees currently in effect can be found at www.ovationcxm.com/pricing.
i. Subscription Fees. Subscription fees are payable in advance of every month or year, based on your selection of a periodic subscription term (“Subscription Period”).
ii. Services Fees. In the course of providing the Services, OvationCXM or Third Party Providers may need to provide you with replacement products, parts, hardware, software, peripheral, cabling, installation and other related services for which you may be billed separately on a time and materials basis. OvationCXM will issue you an invoice for such Services and you will pay for such invoice within thirty (30) days of receipt of the invoice.
b. In order to hold an account with OvationCXM, you must provide OvationCXM with valid credit or debit card information and/or bank account routing information to enable Automated Clearing House (“ACH”) transfers. By submitting such information, you give OvationCXM permission to charge all Fees incurred through your account to the payment instrument you designate. Your right to use the Services is subject to any restrictions imposed by your payment card issuer. If payment cannot be charged to your credit or debit card, ACH transfers do not work or your payment is otherwise returned to OvationCXM for any reason, including chargeback, OvationCXM reserves the right to either suspend or terminate your account and all of your obligations under this EULA.
d. You give permission to OvationCXM to automatically renew your subscription for the same period as the initial Subscription Period and charge your account up to ten (10) days prior to the day on which your subscription is scheduled to end. However, you may opt-out of automatic renewal by visiting the “Payments” option on the Application menu and indicating your preference. Or, at any time at least 10 days prior to the end of the Subscription Period, you may give OvationCXM notice that you do not wish to renew by contacting us at email@example.com. OvationCXM will cancel your account upon receipt of such notification from you.
e. If OvationCXM determines, in its sole discretion, that your actual use of the Services exceeds the use for the monthly or annual subscription plan you are on, OvationCXM reserves the right to charge you on an hourly basis for that portion of the Services that exceeds the use for which you are actually paying or move you to the monthly or annual subscription plan commensurate with such use and charge you for such new monthly or annual subscription plan. If OvationCXM makes such determination, we will send you a notice and if you choose to continue to use the Services, you will be charged at the hourly rate or the new monthly or annual subscription plan described above.
5. Application and Site License.
a. Subject to the terms and conditions of this EULA, OvationCXM hereby grants to you a non-exclusive, limited, non-transferable, non-sublicensable, revocable license to (i) download and install a copy of the Application on a single mobile device that you own or control and to run such copy of the Application and (ii) access the Site, all of the foregoing solely for your personal and non-commercial purposes.
b. You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Application or other OvationCXM Services in any way; (ii) modify or make derivative works based upon Application or other OvationCXM Services; (iii) create Internet “links” to the Site or the Services or “frame” or “mirror” any Application on any other server or wireless or Internet-based device; (iv) reverse engineer or access the Application or other OvationCXM Services in order to (A) design or build a competitive product or service, (B) design or build a product using similar ideas, features, functions or graphics of the Application or other OvationCXM Services, or (C) copy any ideas, features, functions or graphics of the Application or other OvationCXM Services, or (v) launch an automated program or script including, but not limited to, web spiders, web crawlers, web robots, web ants, web indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burdens or hinders the operation and/or performance of the Application or other OvationCXM Services.
c. You shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or otherwise violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Application or the Services or the data contained therein; or (v) attempt to gain unauthorized access to the Site, Application or Services or its related systems or networks.
6. OvationCXM Content License.
a. Subject to the terms and conditions of this EULA, OvationCXM hereby grants to you a non-exclusive, limited, non-transferable, non-sublicensable, revocable license to view, download and print any OvationCXM Content solely for your personal and non-commercial purposes, provided that you do not remove or alter any proprietary rights notice provided with the OvationCXM Content, and do not otherwise view or manipulate the OvationCXM Content using any means other than the Application. For purposes of clarity, Third Party Content and User Content shall not be considered OvationCXM Content.
b. You may not (i) distribute, transmit, transfer, stream, broadcast, assign, rent, lease, sell or otherwise dispose of the OvationCXM Content to any third party; (ii) publicly perform or display the OvationCXM Content; (iii) use the OvationCXM Content in any time sharing arrangement; (iv) modify, create derivative works from or merge the OvationCXM Content with any other materials; (v) reverse engineer, decompile, disassemble, or attempt to derive the OvationCXM Content; (vi) use the OvationCXM Content in an abusive manner as determined solely by OvationCXM; (vii) reproduce or copy the OvationCXM Content or (viii) reuse any OvationCXM Content without first obtaining the written consent of OvationCXM.
7. Third Party Services; Third Party Content; Third Party Websites.
a. The Application may enable access to or use of Third Party Services by Third Party Providers. Use of the Third Party Services may require Internet or telephonic access and that you accept additional terms of service from Third Party Providers. Such terms of service are between you and the Third Party Providers, and OvationCXM shall have no liability arising out of or related to your access or use of such Third Party Services. Further, OvationCXM does not warrant or endorse and does not assume and will not have any liability or responsibility to you or any other person for any Third Party Services.
b. The Application and the Site may display, include, make available, or otherwise link to Content generated or provided by third parties (“Third Party Content”). You understand that Third Party Content may include Content that may be deemed offensive, indecent, or objectionable, or that may be inaccurate, unresponsive, unreliable, or even untruthful. By using the Application or the Services, you acknowledge and agree that OvationCXM shall not be responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of Third Party Content. You acknowledge that OvationCXM only acts as a passive conduit for the distribution of the Third Party Content and OvationCXM does not warrant or endorse and does not assume and will not have any liability or responsibility to you or any other person for any Third Party Content. Third Party Content is provided “AS IS” and solely as a convenience to you, with no warranties of any kind.
c. You agree that the Third Party Content may contain proprietary content, information and material that is protected by copyright and other applicable intellectual property rights, and that you will not use the Third Party Content in any way whatsoever except as permitted by the owners of such Third Party Content. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on Third Party Services, in any manner, and you will not exploit the Third Party Services in an abusive manner as determined solely by OvationCXM, including but not limited to, by trespass or burdening network capacity. You further agree not to use any of the Third Party Content in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that OvationCXM is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that you may receive as a result of using the Third Party Content.
8. User Content.
b. You acknowledge that OvationCXM only acts as a passive conduit for the distribution of the User Content and is not responsible or liable to you or to any third party for the content or accuracy of the User Content. OvationCXM shall not be continuously monitoring User Content published by you or moderating between Users, nor shall OvationCXM be under an obligation to do so. Without limiting the foregoing, you acknowledge and agree that any remarks, opinions, comments, suggestions and other information expressed or included in the User Content do not necessarily represent those of OvationCXM.
c. Any use by you of the User Content is entirely at your own risk. You represent and warrant that any User Content posted or transmitted by you is original to you and does not copy the work of any third party or otherwise infringe or misappropriate any third party intellectual property rights, rights of privacy or personality rights and does not contain any defamatory or disparaging statements. Furthermore, you represent and warrant that you have the capacity to grant the license as stipulated in this paragraph.
d. OvationCXM reserves the right at its sole discretion to block or remove (in whole or in part) any User Content posted or transmitted by you and which OvationCXM believes is not in accordance with this EULA (including materials which infringe or may infringe third party intellectual property rights, rights of privacy or personality rights), or is otherwise unacceptable to OvationCXM.
e. You agree to promptly notify OvationCXM in writing of any User Content which breaches the terms and conditions of this EULA. You agree to provide to OvationCXM sufficient information to enable OvationCXM to investigate whether such User Content breaches the terms and conditions of this EULA. OvationCXM agrees to make good faith efforts to investigate such complaint and shall take such action as OvationCXM in its sole discretion decides. However, OvationCXM does not warrant or represent that it will block or remove (in whole or in part) such User Content.
9. Copyright Policy. OvationCXM respects copyright law and expects its users to do the same. It is OvationCXM's policy to terminate in appropriate circumstances Users or other account holders who (repeatedly) infringe or are believed to be (repeatedly) infringing the rights of copyright holders.
10. Applicability. The OvationCXM Content may contain information on products and services, not all of which are available in every location. A reference to a product or service does not imply that such product or service is or will be available in your location. The products referred to in the OvationCXM Content may be subject to different regulatory requirements depending on the country or area of use. Consequently, you should not construe the OvationCXM Services as a promotion or advertisement for any product or for the use of any product that is not authorized by the laws and regulations of your country or state. OvationCXM reserves the right to change, suspend, remove, or disable access to any Services at any time without notice. In no event will OvationCXM be liable for the removal of or disabling of access to any such Services. OvationCXM may also impose limits on the use of or access to certain Services, in any case and without notice or liability.
11. Updates. OvationCXM reserves the right to provide updates, new versions and revisions, and make changes, corrections, and/or improvements (collectively, “Updates”) to the OvationCXM Services and this EULA, at any time without notice or liability. Updates may, at the option of OvationCXM, only be made available online, and the Application may automatically attempt to download and/or install any Updates. OvationCXM shall have no liability whatsoever arising from your failure or inability to access, install, or use any Updates provided to you, and you shall indemnify, defend and hold harmless OvationCXM Indemnified Parties from and against any Claims and Liabilities arising out of the foregoing or otherwise, in connection with the same. OvationCXM is under no obligation to provide to you with any Updates to correct any bugs or errors in the OvationCXM Services or to otherwise provide support for the OvationCXM Services. Nevertheless, should OvationCXM elect to provide you with any support, such support will be pursuant to OvationCXM’s then-current standard support terms.
12. Ownership of the OvationCXM Services. OvationCXM retains all right, title, and interest in and to the OvationCXM Services, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the OvationCXM Services including all right, title, and interest in and to all works of authorship, expression, moral rights, trademarks, trade names, trade dress, inventions, processes, ideas, methods, compositions, technologies, products, processes, and other proprietary information embodied by or contained in the OvationCXM Services. The Application, Site and OvationCXM Content are licensed, not sold, to you. This EULA does not convey to you any rights of ownership in or related to the OvationCXM Services, or any intellectual property or other proprietary rights owned by OvationCXM. OvationCXM's name, logo, and the product names associated with the OvationCXM Services are trademarks of OvationCXM, its affiliated companies or third parties, and no right or license is granted to use them. Any rights not expressly granted under this EULA are reserved by OvationCXM.
13. Violations. OvationCXM will have the right to investigate and prosecute violations of any of your obligations in this EULA to the fullest extent of the law. OvationCXM may involve and cooperate with law enforcement authorities in prosecuting users who violate the terms and conditions of this EULA. You acknowledge that OvationCXM has no obligation to monitor your access to or use of the Services or User Content or to review or edit any Content, but has the right to do so for the purpose of operating the OvationCXM Services, to ensure your compliance with the terms and conditions of this EULA, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. OvationCXM reserves the right, at any time and without prior notice, to remove or disable access to any Content that OvationCXM, at its sole discretion, considers to be in violation of the terms and conditions of this EULA or otherwise harmful to the OvationCXM Services.
14. Warranty Disclaimer. TO THE MAXIMUM EXTENT PERMISSIBLE BY APPLICABLE LAW, THE SERVICES AND USER CONTENT ARE PROVIDED “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS BASIS” AND OVATIONCXM DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, POSSIBILITY OF USE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS IN CONNECTION WITH THE SERVICES AND USER CONTENT. IN PARTICULAR, TO THE MAXIMUM EXTENT PERMISSIBLE BY APPLICABLE LAW, OVATIONCXM MAKES NO, AND HEREBY DISCLAIMS ANY, REPRESENTATIONS OR WARRANTIES IN CONNECTION WITH ANY ASPECT OF THIRD PARTY PRODUCT INFORMATION INCLUDING, WITHOUT LIMITATION, THAT THE THIRD PARTY PRODUCT OR THIRD PARTY PRODUCT INFORMATION WILL BE ACCURATE, COMPLETE, RELIABLE AND ERROR FREE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, OVATIONCXM DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SERVICES AND USER CONTENT, THAT THE FUNCTIONS CONTAINED IN OR PROVIDED BY THE SERVICES AND USER CONTENT WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SERVICES OR USER CONTENT WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS IN THE SERVICES OR USER CONTENT WILL BE CORRECTED OR THAT THE PROVISION OF OVATIONCXM SUPPORT SERVICES WILL RESOLVE OR FIX ANY ERRORS, DEFECTS, NON-CONFORMITIES OR OTHER ISSUES IN YOUR IT SYSTEMS. OVATIONCXM DOES NOT MAKE ANY COMMITMENT TO ACCESS, AVAILABILITY OR UPTIME WITH RESPECT TO THE APPLICATION AND THE SITE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY OVATIONCXM OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY. SHOULD THE SERVICES OR USER CONTENT PROVE DEFECTIVE, EXCEPT AS EXPRESSLY AND EXPLICITLY SET FORTH IN SECTION 2(D) OF THIS EULA, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. All of the foregoing shall be true even if OvationCXM passes through product warranties provided by the Third Party Vendors when OvationCXM resells the Third Party Products to you and OvationCXM doing so shall not in no event create any legal or other obligation on the part of OvationCXM. Some jurisdictions do not allow the exclusion of implied warranties or limitations on applicable statutory rights of a consumer, so the above exclusion may not apply to you.
15. Limitation of Liability.
a. TO THE MAXIMUM EXTENT PERMISSIBLE BY APPLICABLE LAW AND EXCEPT AS EXPRESSLY AND EXPLICITLY SET FORTH IN SECTION 2(D) OF THIS EULA, OVATIONCXM ACCEPTS NO RESPONSIBILITY OR LIABILITY WHATSOEVER ARISING FROM OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR USER CONTENT. OVATIONCXM SHALL NOT BE LIABLE TO YOU FOR ANY ERRORS OR OMISSIONS IN THE SERVICES OR USER CONTENT OR FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR INCIDENTAL DAMAGES, INCLUDING LOST PROFITS AND LOST DATA, ARISING FROM OR RELATED TO THE AGREEMENT, THE SERVICES OR USER CONTENT, EVEN IF OVATIONCXM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN PARTICULAR, OVATIONCXM WILL NOT BE LIABLE FOR THE ACCURACY, COMPLETENESS, ADEQUACY, TIMELINESS, OR COMPREHENSIVENESS OF THE SERVICES OR USER CONTENT. OVATIONCXM’S TOTAL, CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE AGREEMENT IS LIMITED TO THE FEES PAID UNDER THIS EULA. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose. Certain jurisdictions do not permit the limitation or exclusion of incidental damages, so this limitation may not apply to you. OvationCXM also assumes no responsibility and shall not be liable for any damages to, or viruses that may infect, your computing devices or other property on account of your access to or use of the Services or User Content.
b. The quality of the Third Party Services requested through the use of the Site or the Application is entirely the responsibility of the Third Party Provider who ultimately provides such services to you. OvationCXM under no circumstance accepts liability in connection with and/or arising from the Third Party Services provided by the Third Party Provider or any acts, action, behavior, conduct, and/or negligence on the part of the Third Party Provider. Any complaints about the Third Party Support Services and other Third Party Services provided by the Third Party Provider should therefore be submitted to the Third Party Provider and any complaints about Third Party Products should be submitted to the Third Party Vendor.
c. The information, recommendations and/or services provided to you on or through the OvationCXM Services are for general information purposes only and do not constitute advice. OvationCXM will reasonably keep the Application and the Site and its contents correct and up to date but does not guarantee that (the contents of) the Application and/or the Site are free of errors, defects, malware and viruses or that the Application and/or the Site are correct, up to date and accurate. OvationCXM shall not be liable for any damages resulting from the use of or inability to use the Site or Application (but to the exclusion of death or personal injury), including damages caused by malware, viruses or any incorrectness or incompleteness of the information or the Application or the Site, unless such damage is the result of any wilful misconduct or from gross negligence on the part of OvationCXM. OvationCXM shall further not be liable for damages resulting from the use of (or the inability to use) electronic means of communication with the Application or the Site, including – but not limited to – damages resulting from failure or delay in delivery of electronic communications, interception or manipulation of electronic communications by third parties or by computer programs used for electronic communications and transmission of viruses.
16. Indemnification. You will indemnify, defend and hold harmless OvationCXM Indemnified Parties from any Claims and Liabilities arising out of, based on, as a result of, or in any way in connection with (i) breach or violation of this EULA or any applicable law or regulation; (ii) your violation of any rights of any third party including Third Party Provider arranged via the Application; (iii) your use or misuse of the Services or User Content; or (iv) any claim that the User Content or any other information or data that you provide to OvationCXM or use in connection with your Services requires compliance with PCI DSS, or infringes any intellectual property or other proprietary right of any person or entity, including without limitation any access or use, receipt, breach, or infringement by anyone using your account or password.
17. Legal Compliance. You agree that you will comply with all applicable laws and regulations when using the Services or User Content, including but not limited to the export laws and regulations of the United States. You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
18. Misuse. You agree not to use the Services or User Content in any manner or for any purpose that is prohibited by this EULA. You may not use, copy, adapt, modify, create derivative works from, distribute, license, sell, transfer, publicly display, publicly perform, reproduce, transmit, stream, broadcast or otherwise exploit the Services or User Content, except as expressly permitted in this EULA. You may not reuse any Content without first obtaining the written consent of OvationCXM. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by OvationCXM or its licensors, except for the licenses and rights expressly granted in this EULA. In addition, you agree not to: (i) use the Services or User Content for any purpose that is prohibited by any law or regulation, or to facilitate the violation of any law or regulation; (ii) use or attempt to use any “deep-link,” “scraper,” “robot,” “bot,” “spider,” “data mining,” “computer code” or any other automated device, program, tool, algorithm, process or methodology, or any manual process having similar processes or functionality, to access, acquire, copy, or monitor any portion of the Services or User Content found on or accessed through the Application; (iii) obtain or attempt to obtain through any means any materials or information on the Application that have not been intentionally made available to you; (iv) in any way bypass or circumvent any other measure employed to limit or prevent access to or use of certain the Services or User Content; (v) violate the security of the Application or the Services or attempt to gain unauthorized access to the OvationCXM Content or Third Party Content, computer systems, or networks connected to any server associated with the Application, through hacking, password mining, or any other means; or (vi) take or attempt any action that, in the sole discretion of OvationCXM, imposes or may impose an unreasonable or disproportionately large load or burden on OvationCXM’s infrastructure.
19. Sourced Applications
i. You and OvationCXM acknowledge that, Google is not responsible for addressing any claims you have or any claims of any third party relating to any claim that the Application accessed through or downloaded from GooglePlay (“GooglePlay Sourced Application”) or your possession and/or use of the GooglePlay Sourced Application infringes that third party intellectual property rights, and in the event of any third party claim any GooglePlay Sourced Application or your possession and use of that GooglePlay Sourced Application infringes that third party intellectual property rights, Google will not be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this EULA.
ii. Without limiting any other provisions of this EULA, you must comply with all applicable terms of service, license agreements and other agreements and requirements (including any amendments or updates to each of the foregoing) when using the GooglePlay Sourced Application, including the GooglePlay Terms of Service.
b. Apple App Store
i. With respect to any Application accessed through or downloaded from the Apple App Store (“App Store Sourced Application“), you will use the App Store Sourced Application only: (i) on an Apple-branded product that runs iOS (Apple’s proprietary operating system software) that you own or control; and (ii) as permitted by the “Usage Rules” or similar rules set forth in the Apple App Store Terms of Service. OvationCXM reserves all rights in and to the Application not expressly granted to you under this EULA.
ii. You acknowledge and agree that (i) this EULA is valid between you and OvationCXM only, and not Apple, and (ii) OvationCXM, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
iii. In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will, where applicable, refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between OvationCXM and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of OvationCXM.
iv. You and OvationCXM acknowledge that, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and/or use of the App Store Sourced Application, including, but not limited to: (i) product liability claims, (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement, and (iii) claims arising under consumer protection or similar legislation.
v. You and OvationCXM acknowledge that, in the event of any third party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, Apple will not be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this EULA.
vi. You and OvationCXM acknowledge and agree that Apple and its subsidiaries, are third party beneficiaries relating to your license of the App Store Sourced Application, and that, upon your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce the rights under this EULA as related to your license of the App Store Sourced Application against you as a third party beneficiary thereof.
vii. Without limiting any other provisions of this EULA, you must comply with all applicable terms of service, license agreements and other agreements and requirements (including any amendments or updates to each of the foregoing) when using the App Store Sourced Application, including the iTunes Store Terms of Service.
20. Term and Termination
a. Term. The initial term of your Services shall be during the Subscription Period (including any renewals thereof) elected by you, unless terminated sooner pursuant with this Section 20.
b. Termination. You may terminate your Services at any time by disabling the automatic renewal function in the Payments section of the Application, which will have the effect of terminating your account at the end of the then-current term. Or, at any time at least 10 days prior to the end of the Subscription Period (or any renewals thereof), you may give OvationCXM notice that you do not wish to renew by contacting us at firstname.lastname@example.org. OvationCXM will cancel your account upon receipt of such notification from you.
c. Without limitation to any of its rights herein, OvationCXM reserves the right to suspend or terminate your Services at any time, if OvationCXM determines, in its sole discretion, that you have breached or repudiated (or are at risk of breaching or repudiating) any provision of this EULA, if OvationCXM is required to do so by law, if the provision of your Services is, in OvationCXM’s opinion, no longer commercially viable or for any other reason upon thirty (30) days prior written notice. OvationCXM shall not be liable to you for any amount in the event of a termination under this Section.
d. Termination or expiration of your Services for any reason shall not release either party from any liabilities or obligations set forth in this EULA that (i) the parties have expressly agreed shall survive any such termination or expiration or (ii) by their nature would be intended to be applicable following any such termination or expiration. These terms shall survive the expiration or earlier termination of your Services.
e. In the event of any termination or expiration of your Services, all of your data related to your Services (including any User Content) will be deleted by OvationCXM from any servers or other hardware directly controlled by OvationCXM. It is your responsibility to retain copies or backups of any data (including any User Content) related to your Services.
21. General Terms.
a. Entire Agreement. This EULA sets forth the entire agreement and understanding of the parties relating to its subject matter.
b. Notice: Consent to Electronic Notice. You consent to the use of (i) electronic means to complete this EULA and to deliver any notices pursuant to this EULA; and (ii) electronic records to store information related to this EULA or your use of the OvationCXM Services. Notices hereunder shall be invalid unless made in writing and given (x) by OvationCXM via email (in each case to the email address that you provide), (y) a posting on the Site or (z) by you via email to [support email address] or to such other addresses as OvationCXM may specify in writing. The date of receipt will be deemed the date on which such notice is transmitted.
c. Modification. An amendment to this EULA shall not be valid unless made in writing with written consent of all Parties.
d. Waiver. If one Party waives any term or provision of this EULA at any time, that waiver must be in writing and will only be effective for the specific instance and specific purpose for which the waiver was given. If either Party fails to exercise or delays exercising any of its rights or remedies under this EULA, that party retains the right to enforce that term or provision at a later time.
e. Assignability. A User may not assign this EULA, or any of its rights or obligations hereunder, without OvationCXM’s prior written. OvationCXM may freely assign this EULA without consent of a User. Any attempted assignment or transfer in violation of this Section will be null and void. Subject to the foregoing restrictions, this EULA will inure to the benefit of the successors and permitted assigns of the parties.
f. Severability. If and to the extent any provision of this EULA is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof shall be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability, and shall be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction shall not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.
g. Interpretation. The headings in this EULA are merely for convenience. They shall not be considered as binding in interpreting this EULA. The words “herein”, “hereof” and “hereunder”, and words of like import used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement. Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”, whether or not they are in fact followed by those words or words of like import.
h. Choice of Law. This EULA shall be deemed entered into in San Francisco, California and will be governed by and construed in accordance with the laws of the State of California. Any legal suit, action or proceeding arising out of or relating to this EULA shall be commenced in a federal or state court in San Francisco, California, and each Party hereto irrevocably submits to the exclusive jurisdiction and venue of any such court in any such suit, action or proceeding. The parties expressly and irrevocably disclaim and waive the application of the United Nations Convention on Contracts for the International Sale of Goods. Certain jurisdictions may not permit its citizen from being subject to courts in California, so the foregoing venue may not apply to you.
i. Protected Health Information. You agree not to provide OvationCXM with any Protected Health Information (as defined by the Health Insurance Portability and Accountability Act of 1996 and the Health Information Technology for Economic and Clinical Health Act) and you agree that OvationCXM is not a business associate as defined by the Health Information Technology for Economic and Clinical Health Act.
j. Other. Boomtown Network, Inc. dba OvationCXM is in no way affiliated with, sponsored, or endorsed by BoomTown ROI, LLC.
BY INSTALLING, ACCESSING OR OTHERWISE USING THE MOBILE APPLICATION, THE WEBSITE LOCATED AT WWW.OVATIONCXM.COM, OR ANY SOFTWARE, CONTENT, DATA, INFORMATION, SERVICES, PRODUCTS OR OTHER ITEMS PROVIDED BY OR IN CONNECTION WITH THE APPLICATION OR THE WEBSITE, YOU ACKNOWLEDGE, WITHOUT LIMITATION OR QUALIFICATION, THAT YOU HAVE READ THIS EULA, UNDERSTAND AND AGREE TO BE BOUND TO THE TERMS AND CONDITIONS OF THIS EULA, AND ACKNOWLEDGE THAT ANY OTHER AGREEMENTS REGARDING THE MOBILE APPLICATION, THE WEBSITE LOCATED AT WWW.OVATIONCXM.COM, OR ANY SOFTWARE, CONTENT, DATA, INFORMATION, SERVICES, PRODUCTS OR OTHER ITEMS PROVIDED BY OR IN CONNECTION WITH THE APPLICATION OR THE WEBSITE BETWEEN YOU AND OVATIONCXM ARE SUPERSEDED AND OF NO FORCE OR EFFECT. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, CLICK “I REJECT THE TERMS IN THIS EULA” AND REMOVE THE MOBILE APPLICATION FROM ANY AND ALL DEVICES IN YOUR POSSESSION. BY REJECTING THIS EULA, YOU MAY NOT USE THE MOBILE APPLICATION, THE WEBSITE LOCATED AT WWW.OVATIONCXM.COM, OR ANY SOFTWARE, CONTENT, DATA, INFORMATION, SERVICES, PRODUCTS OR OTHER ITEMS PROVIDED BY OR IN CONNECTION WITH THE MOBILE APPLICATION OR THE WEBSITE IN ANY MANNER.