This Advertiser agreement (the “Agreement“) by and between Blue Calypso, Inc. a Delaware corporation having a principal place of business at 101W. Renner Rd. Suite 200, Richardson, Texas 75082 (the “Company“) and Advertiser as is further defined below shall define the terms and conditions about which the parties desire to do business together. Blue Calypso’s patented mobile shopper activation, engagement and analytics platform analytics platform includes but is not limited to Mobile ADvantage® and KIOSentrix®, the Blue Calypso website, secure web portal, analytics engine, mobile apps, content, data, documentation and all related components (the “System“) owned, operated, and/or provided by the Company. Advertiser has indicated that they desire to advertise one or more goods, products, services, or locations using the System (the “Registered Services“). Advertiser’s access to, and use of, the Registered Services is conditioned upon acceptance, without modification, of the following terms, conditions, and notices (these “Blue Calypso Advertiser Terms“).
Company may change these Advertiser Terms from time to time in Company’s sole discretion. Accordingly, Company encourages Advertiser to review these Advertiser Terms periodically. Company reserves the right (but is not required) to post a notice on the System or send Advertiser a notice via email or any other delivery method of any such change to these Advertiser Terms. The most current version of these Advertiser Terms will be available on the website of the System. If Advertiser continues to use the Registered Services after Company changes these Advertiser Terms, then Advertiser accepts all such changes.
2. INFORMATION PROVISIONS.
(a) Confidential Information“ means all information disclosed by Advertiser or Company (the “Discloser“) to the other (the”Recipient”) in connection with the Registered Services, whether tangible or intangible or disclosed verbally, in writing, electronically, or otherwise. Confidential Information includes information relating to (i) pricing, (ii) spend rates, (iii) revenue, (iv) business rules (including advertising rules and logic), and (v) the System (including the look, feel, and functionality of the System). Advertiser Content (as defined below) that is approved by Advertiser for dissemination and/or forwarding through the System to users shall never constitute Advertiser Confidential Information.
(b) Except for the System (including the look, feel, and functionality of the System) and for information that is required by law to remain confidential, Confidential Information of the Discloser does not include information that (i) Recipient can establish in writing is (1) publicly available without violation of these Advertiser Terms or any other obligation of confidentiality or (2) subsequently disclosed to Recipient by a third party without restriction and the disclosure by the third party does not violate any obligation of confidentiality or (ii) has been anonymized (meaning that no single person can be identified by such anonymized information), such as aggregated data, click-through rates, or redemption rates, whether any of the foregoing are calculated, produced, grouped, or separated by industry or by geography.
(c) Recipient shall never:
(i) Disclose, license, transfer, sell, or make available to anyone any Confidential Information of Discloser, except Recipient may disclose and make available Discloser’s Confidential Information (1) to Recipient’s employees (and, in the case of Company, to Company contractors and agents) who have a need to know such Confidential Information (but only to the extent thereof) and who are bound in writing to restrictions at least as protective as those restrictions contained in these Advertiser Terms or (2) as required by operation of law, provided that Recipient has promptly notified Discloser in writing of any legal process requiring production of such Confidential Information prior to compliance with such process and has taken all reasonable precautions, including seeking a protective order if so requested by (and at the sole cost and expense of) Discloser, to ensure confidential treatment of any Confidential Information so disclosed and such production is limited to the minimum extent necessary to comply with such legal process; or
(ii) Use, copy, or reproduce any Confidential Information of Discloser except as necessary in connection with the purpose for which such Confidential Information is disclosed to Recipient and in accordance with these Advertiser Terms.
(d) For clarity (and without limiting Section 2.1.c., Advertiser shall never (i) disclose or make available the System (or the look, feel, or functionality of the System) to any competitor, or potential competitor, of Company or (ii) use the System for any purpose that is competitive to Company.
(e) Recipient shall treat Discloser’s Confidential Information with the same degree of care as Recipient accords to Recipient’s own Confidential Information, but in no case less than reasonable care, including taking all reasonable measures to protect the secrecy of Discloser’s Confidential Information and protect against unauthorized acts with respect to Discloser’s Confidential Information. Recipient shall promptly advise Discloser if Recipient learns of any unauthorized act with respect to Discloser’s Confidential Information.
(f) Discloser shall continue to own all of Discloser’s Confidential Information. Recipient shall promptly return to Discloser all Confidential Information of Discloser (including all compilations, manuals, documents, electronic media, and other tangible items containing, regarding, referencing, or relating to Discloser’s Confidential Information) upon the earlier to occur of (i) a written request by Discloser or (ii) termination of Advertiser’s Account (as defined below) or access to the Registered Services.
(g) Nothing in these Advertiser Terms will prevent Company or Company’s affiliates from complying with any applicable law (including any applicable privacy law).
(h) A breach or threatened breach of this Section 2.1 by Recipient may cause irreparable harm and injury to Discloser for which money damages are inadequate. In the event of such breach or threatened breach, Discloser shall be entitled to seek injunctive relief, without the requirement of posting a bond or any other security, in addition to all other available remedies.
2.3 CONFLICT RESOLUTION.
4. REGISTERED SERVICES.
The Registered Services facilitate the delivery of electronic Advertiser Content, which may include but is not limited to text, hyperlinks, graphics, videos, pictures, coupons, audio, and banners, that are approved by Advertisers (collectively “Advertiser Content“) to consumers. A more detailed description of the Registered Services is located on the Company website; Company reserves the right to modify the description of the Registered Services from time to time in Company’s discretion. All references in these Advertiser Terms to the Registered Services shall be based upon, and determined and controlled by, such then-current description of the Registered Services at the then-current link, notwithstanding any description of the Registered Services to the contrary in these Advertiser Terms (including this Section 4) or in any Additional Terms or any description of the Registered Services located on a prior version of the System.
As a part of using the Registered Services, Advertiser may request access to the secure web portal to view collected data and information in the System and therefore may be required to register with Company by entering Advertiser’s email address, selecting a valid password, and providing all other required registration information (collectively “Advertiser’s Login Information“). Upon registration with Company (if any) to use the Registered Services, Advertiser will be provided with a Registered Services account (“Advertiser’s Account“).
5.2 RESTRICTIONS AND LIMITATIONS.
Company shall have no liability associated with, or arising from, Advertiser’s failure to maintain accurate, current, and complete registration information, including liability arising out of Advertiser’s failure to receive critical information about any Registered Service or Advertiser’s Account. Company shall not be responsible for verifying Advertiser’s registration information, including Advertiser’s Login Information. Advertiser may not (i) select or use as Advertiser’s Login Information a name of another person with the intent to impersonate that person or (ii) use as Advertiser’s Login Information a name subject to any rights of a person other than Advertiser without appropriate authorization. Company reserves the right to refuse registration of, or cancel, Advertiser’s Login Information or Advertiser’s Account in Company’s discretion. Advertiser shall maintain the confidentiality and security of Advertiser’s Login Information, Advertiser’s Account, and Advertiser’s other identification information relating to Advertiser’s Account, and Advertiser shall not provide any of the foregoing to any other person or entity. Company shall not be liable for any unauthorized access or use of Advertiser’s Login Information or Advertiser’s Account. Advertiser is fully responsible for all use of, and activities that occur under, Advertiser’s Login Information and Advertiser’s Account and for any actions that take place through Advertiser’s registration or access to the Registered Services (whether conducted by Advertiser or another). Advertiser is solely responsible for restricting access to Advertiser’s computer(s), including mobile devices, as necessary. Company reserves the right to require Advertiser to change Advertiser’s Login Information from time to time. Failure to comply with any portion of this Section 5 shall constitute a breach of this Agreement, which may result in immediate termination of Advertiser’s Account.
6. ADVERTISER CONTENT.
If Advertiser submits, approves, or forwards any Advertiser Content as part of the Registered Services, Advertiser agrees that such Advertiser Content may be used in any and all ways as contemplated by the Registered Services. Advertiser acknowledges and agrees that Company has no control over, or responsibility with respect to any of the Advertiser Content. Advertiser further acknowledges and agrees that Company has no control over, or responsibility with respect to the use of, or statements regarding, the Advertiser Content following receipt of such Advertiser Content by intended recipients of the Registered Services, such as participating consumers matched with Advertisers. Advertiser waives any claim against Company with respect to any and all Advertiser Content. Advertiser may not attempt to instruct, coerce, or manipulate anyone into disguising or hiding the commercial relationship between Advertiser and such person or entity in connection with the Registered Services. Company makes no promises or guarantees with respect to sales or revenue amounts relating to, or arising or resulting from, the System or the Registered Services.
7. FEES AND PAYMENT.
Advertiser agrees to pay Company for the Registered Services in accordance with separately executed Services and Fee Schedule(s) attached hereto. Company does not provide price protection or refunds in the event of a price drop or promotional offering. Company reserves the right to suspend or terminate any or all Advertisement campaigns for non-payment.
8. REPRESENTATIONS AND WARRANTIES.
Advertiser represents and warrants to Company that (i) all Advertiser Content is current and accurate and (ii) no Advertisement will target children under the age of 13.
9. ACCOUNT CLOSURES.
Company reserves the right to close Advertiser’s Account if Advertiser’s Account has been inactive for a period of 12 consecutive months. In addition, Advertiser’s Account will be closed automatically in the event Advertiser’s access to the Registered Services is terminated (without regard to the reason for such termination). If Advertiser’s Account is closed, Advertiser must re-enroll as a new Advertiser. Company shall not be liable for any closure of Advertiser’s Account or termination of Advertiser’s access to the Registered Services.
This Section 10 and Sections 7, 8, 9, and 10 shall survival termination of Advertiser’s right to access or use the Registered Services and the closing of Advertiser’s Account.