Terms of Service
- ACCOUNT REGISTRATION AND ACCESS
To register for the Choozle Platform and create an account, you (including any agent designated by you operating on your behalf) must complete the registration process by providing Choozle with the information prompted by the registration form, including, but not limited to, your name, email address, telephone, company name, company website, and password. You agree to provide us with complete and accurate information when you register for the Choozle Platform, and to keep such information up to date.
You shall protect your username and password and are solely responsible for activities that occur under or through your account, including activities initiated by third parties, whether or not you authorize such activities. If you allow a third party to access the Choozle Platform on your behalf, you shall ensure that such third party is bound by, and abides by, the terms of this Agreement. You agree to notify Choozle immediately of any unauthorized use of your account or any other breach of security relating to your account or your use of the Choozle Platform. You may only use the Services for your internal business purposes.
Choozle may access your account, or information associated with your account, to provide support or maintenance, for security-related reasons, or any other business purpose. You acknowledge and consent to such access.
2.1. Subscription Plans and Additional Services
Choozle offers monthly Subscription Plans. These Subscription Plans include unlimited advertiser accounts, access to media purchasing capabilities through a digital advertising software platform, access to a third-party data catalog, and support services. Data Packages (Web Insights and CRM Onboarding), IP Sourcing, White Labeling, and Success Packages (support) are optional add-ons that can be purchased with a Subscription Plan.
Pricing for Data Packages starts at $200 per month at the time of signup and on the first of each month to unlock CRM Onboarding functions and Web Insights. If an account exceeds 40,000 uploaded CRM Onboarding records, the account will be charged a $5 CPM for every additional record that is uploaded.
To enable Web Insights, you must place the supplied “Choozle Smart Container Tag” on your website as directed by Choozle to properly record user profiles across your website or desired pages to provide data on Matched Profiles for a tracked website. Choozle reserves the right to audit your monthly Data Package via third-party measurement tools and services. A “Matched Profile” or “Total Records” means any action that triggers a match between data held by or on behalf of Choozle or its partners, and customer or client data provided to Choozle by or on behalf of you, in each case, as determined in Choozle’s sole discretion.
Downgrading your Data Package may result in the loss of account content, features, or capacity. Choozle does not accept any liability for such loss.
Success Package pricing tiers are determined by the number of hours of Client Experience support given month or billing period. The number of hours purchased is for that given month or billing period, and these hours expire at the end of the billing period and they do not roll over or extend unless otherwise stated. If it is a recurring Success Package you will be billed on the first of each month for that Success Package. If you are paying for a one-time Success Package then you will be billed at the time of purchase for that specific amount of support hours. Support hours, no matter the Success Package type, expire at the end of the time period described in the Success Package. There are no rollover hours, refunds for unused support time or cancellations of any kind.
2.2. Changes in Fees
We may, upon any notice required by applicable law, change the fees for the Choozle Platform at any time or impose additional fees or charges. Such changes will be effective immediately upon posting on our Website; provided, however, that such fee changes will be effective only as to prospective Choozle Platform orders (including monthly, automatic renewals and Plan upgrades) after the effective date of such change.
2.3. Payment of Fees
During the registration process, you will enter your required details to create your “Master Account” and subsequent “Advertiser Accounts.” A credit card is required to activate your subscription and ensure you have continued access to your account and the Platform. At the time of registration, you will be charged a prorated amount for the days remaining in the month in which you register.
After your first month or usage, Your Subscription Plan will automatically renew at the first of the following month and you will be charged the full amount of your subscription. Your Subscription Plan will renew automatically and continue month-to-month at the rate you agreed to unless you cancel your Subscription Plan or we terminate it, in each case pursuant to the terms of this Agreement (see Section 2.6 (“Account Cancellation”) and Section 11 (“Term and Termination”)). You must cancel your Subscription Plan before it renews to stop recurring charges. We will bill the fees due under your Subscription Plan (including any associated Data Package, Success Package, Media Fees or Campaign expenses) to the credit card you provide us during registration (or to a different credit card if you change your payment information) and continue to do so month-to-month at the rate you agreed to as set forth herein. The fees for your Subscription Plan, Data Package and Success Package are billed in advance of each billing cycle and are non-refundable. You acknowledge that the amount billed for each renewal period may vary due to promotional offers, changes in your Subscription Plan, Data Package, Success Package, or applicable taxes, and you authorize us to bill you the corresponding amounts. No refunds or credits or rollovers will be provided for partial months of the Choozle Platform, upgrades and downgrades, or for months unused with an open account. Any discounts applied to a previous Subscription Plan will not apply to a renewed Subscription Plan, including automatic renewals.
As an express condition of your use of and access to the Choozle Platform, you agree to pay all fees applicable to your Plan, any other fees for additional services you may purchase (including, but not limited to, media creation, data, Data Package, Success Package, and advertising campaigns), and any applicable taxes in connection with your use of the Choozle Platform. We reserve the right to deactivate your access to the Choozle Platform for failure to pay applicable fees as described in this Agreement. Unless otherwise stated, all fees are payable in U.S. Dollars.
2.4. Credit Card Payments
All fees for your Subscription Plan, Data Package, Success Package, Media Fees or Campaign expenses will be billed to your credit card. You authorize the card issuer to pay any amounts described herein and associated with your Subscription Plan, Data Package, Success Package, Media Fees or Campaign expenses and authorize us (or a billing agent acting on our behalf) to continue charging all such amounts to your credit card account until you or we cancel or terminate your Plan as provided herein or these amounts are paid in full, whichever is later. You must provide current, complete and accurate billing and credit card information. You must promptly update all billing information (such as billing address, card number, and expiration date) to keep your account current, complete and accurate, and you must promptly contact Choozle if your credit card is lost or stolen, or if you become aware of a potential breach of account security (such as an unauthorized disclosure or use of your Choozle username or password). You authorize us to obtain or determine updated or replacement expiration dates for your credit card in the event that the credit card you provided us expires. We reserve the right to charge any renewal card issued to you to the same extent as the expired card. If payment is not received from your credit card issuer, you agree to pay all amounts due upon demand. If payment is not received as a result of an expired credit card, we reserve the right to cancel your Subscription Plan and or remove access to your account. You agree to pay all costs of collection, including attorney’s fees and costs, on any outstanding balance. In certain instances, the issuer of your credit card may charge you a foreign transaction fee or related charges, which you will be responsible to pay. Please check with your bank and credit card issuer for details.
2.5. Adjusting Subscription Plans
Questions involving upgrades or downgrades to your Subscription Plan can be directed to firstname.lastname@example.org or by submitting a ticket within the Choozle Support Center.
Any additional or alternative payment arrangements are in Choozle’s sole discretion.
2.6. Account Cancellation
You may cancel your Subscription Plan by contacting email@example.com, submitting a ticket within the Choozle Support Center and requesting a cancellation or selecting the “Cancel Account” option in the account settings within the Platform. You must cancel your Subscription Plan prior to the end of your current pre-paid period to avoid charges for the next billing cycle. If you cancel your Subscription Plan, you will lose all access, upon the expiration of your current pre-paid period, to the Choozle Platform and any data or information stored in your account. See Section 11 (“Term and Termination”) for additional details. Cancellation of your Subscription Plan automatically cancels any Data Package or Success Package associated with that Subscription Plan. No refunds or credit will be given for any Data Package or Success Package canceled due to a canceled Subscription Plan. Any unused “Campaign Balances” will be credited to the credit card on file at the last day of the month in which the account is canceled.
2.7 Media Fees
All paying Platform subscribers have access to the Choozle advertising planning and buying “Campaign” tool in the Platform. By utilizing the Campaign tool, you will incur incremental Media Fees that are comprised of, but not limited to, campaign balances, media costs, data targeting costs, ad serving costs, third-party tool costs and optimization costs that drive the execution of campaigns. These Media Fees will be set forth on the Platform. You agree to pay any media or campaign fees for Campaigns selected by you.
You will obtain and hereby grant to Choozle, all rights, and permissions needed to authorize Choozle to buy inventory on your behalf (and any third party on whose behalf you are acting), perform tracking and analytics, and to store and serve ads. During the Term, Choozle may offer additional services beyond those described herein. Fees for such services will be shown in the Platform user interface. In addition, to the extent that Company requests Choozle’s help to manage campaigns or to use the Services, whether such requests are verbal or in writing, Company consents to the actions that Choozle performs on its behalf and will pay any additional fees as set forth in the Platform. The company retains sole responsibility for such assisted use of the Services.
If you authorize Choozle to manage campaigns on your behalf through the Platform, Choozle will charge an increased fee on your media. The current fee for managed campaigns services is 10 percent but is subject to change upon notice from Choozle.
All media fees are paid in advance via credit card. This is the same credit card that is used for the monthly billing subscription purposes. When you plan and activate any campaign, your credit card will be charged for a portion of the total campaign amount, known as your Campaign Balance. As your usage of the Campaign tool depletes the Campaign Balance, your card will be charged again to maintain a positive Campaign Balance in relation to the size of your media buy. All amounts due or payable hereunder are in US dollars. Media Fees and Campaign expenses for all media or ads that have already been placed are noncancellable and nonrefundable.
Subscribers have access to Choozle’s online reporting interface. All reports from the interface are for your internal use only. If you are an agency utilizing the Choozle platform on behalf of a client (Account), you may share any and all campaign reporting with the client for their internal use only and you shall ensure that such client uses the reports, and the Service and Platform in accordance with these terms. Reporting options include campaign performance and Web Insights reports. You shall remain responsible for the acts and omissions of your clients and any third party for whom you use the services.
Choozle will have sole responsibility for calculating and reporting metrics on media or data bought and sold through the Platform. Such metrics will be used for calculating payments. Choozle will make such metrics available to you through the Platform. In the event of discrepancies between your records and Choozle’s metrics, you may inspect the log files up to twice per calendar year, provided that any inspection shall be at reasonable times and on reasonable notice, and you may not inspect the log files for the same time period more than once. Any data made available to you during an inspection is Choozle’s Confidential Information and you will not disclose such data to any third party or use such data for any purpose other than verifying Choozle’s accounting. If there is a discrepancy of more than 10 percent between the cost of inventory or data procured directly from the Choozle Platform and the parties are unable to resolve the discrepancy, Choozle is responsible for the amount of the discrepancy above 10 percent. You must raise any discrepancies within 30 days of the date of the applicable campaign. Choozle may revise and update numbers if there is a delay in reporting affecting month-end invoicing.
2.9 Analytics and Insights
This section applies if the Company implements the analytics code (“Smart Tag Container”) and tools available in the Platform (like click and conversion tracking and ad-level audience insights) (“Analytics”). During the Analytics setup process, Choozle may append certain parameters to the URL or Website associated with the Company’s ad to enable Analytics. You may not edit or delete such parameters without Choozle’s prior written consent. Upon termination of this Agreement, you must promptly remove all Analytics code (“Smart Tag Container”). If you enable Analytics, you must inform your users that (a) it uses Choozle to monitor interaction with its ads and website(s), and Choozle may gather and use information from cookies or other automated technologies, and (b) if the user chooses, the user can opt out from Choozle’s collection of certain information, by clicking on the following link: http://www.adsrvr.org.
To clarify, the Company does not have to use this specific language as long as it communicates the same information.
3.1. License to Choozle Software
Subject to the terms and conditions of this Agreement, Choozle hereby grants you a limited, revocable, non-exclusive, non-transferable and non-assignable license to (i) include the Choozle-provided code (together with any fixes, updates and upgrades provided to you, the “(“Smart Tag Container”) in the HTML code for web page(s) that are properly registered for the Choozle Platform and owned or operated by you, solely for the purposes of accessing and providing information to the Choozle Platform and accessing information available from the Choozle Platform with respect to such web page(s); and (ii) remotely access the Choozle Platform to view and download your reports stored on the Choozle Website, located at http://choozle.com, in each case for your internal business purposes.
Except as expressly set forth herein, you shall not (A) use, reproduce, modify, or create derivative works of the Choozle “Smart Tag Container”, or (B) transfer, lease, lend, sublicense, use for timesharing, or service bureau purposes, resell or otherwise distribute or allow third-party access to all or any portion of the Choozle Smart Container Tag or the Choozle Platform.
As part of the Services, Choozle may provide you with access to information, reports, insights or analytics generated by third parties (“Third-Party Material”). You may only use such Third-Party Material for your internal business purposes in connection with your use of the Service, and never on any standalone or separated basis. Choozle provides all Third-Party Material AS-IS and WITHOUT ANY WARRANTIES.
3.2. License to Client Data
As between the parties, you shall not retain ownership of any information, data, and statistics that Choozle obtains from your website, such as raw data and log files generated by or provided to the Choozle Platform, and Choozle shall have all right, title, and interest in and to such information, data, and statistics.
You hereby grant to Choozle, and you agree to grant to Choozle, a royalty-free, nonexclusive, irrevocable, limited right and license to access your registered web page(s) and to access and log (i) any information concerning users’ actions, entries, or activities on your web page(s), (ii) any information sent to you by users’ web browsers concerning users’ web activities immediately prior to visiting your web page(s) (e.g., URL information and HTTP header information), or (iii) any data or other information you provide to Choozle or that is provided to Choozle on your behalf or by your users, including without limitation browser usage and screen resolution, and any customer resource management (CRM) data, including customer names, emails, phone numbers, addresses, and zip codes(collectively “Client Data”) for the purposes of (a) providing you with reports and other functions related to the Choozle Platform; (b) analyzing and improving the Choozle Platform; or (c) compiling aggregate data derived from your use of the Choozle Platform to compile statistics, metrics, insights and general trend data about the Choozle Platform for use in Choozle’s discretion, among other things, Choozle’s marketing and promotional purposes; and (d) otherwise providing you the services.
You represent and warrant that you have all rights, licenses, and consents required to license Client Data to Choozle on these terms, that Choozle has the rights to use the Client Data has authorized under these terms, and further represent and warrant that the Client Data does not infringe the rights of any third party or violate any applicable law or regulation. You acknowledge that we may require access to certain software or platforms of you or your providers in order to access and use the Client Data, and you represent and warrant that you have the ability and full right to grant us access to such software and platforms to access the Client Data and use the Client Data in accordance with this Agreement.
3.3. License to Material Which You Post
By posting any software, information, data, databases, music, audio, video or audiovisual files, photographs, images, documents, text, digital files, forum messages, reviews, comments or other material (“Material”) to the Platform or Service, you hereby grant Choozle an irrevocable, perpetual, non-exclusive, royalty-free worldwide license to reproduce, adapt, distribute, perform or publicly display, or create derivative works from all or any portion of the Material for the purpose of providing you the Services. You further represent and warrant that you own all rights to such Material and that the Materials do not infringe the rights of any third party or violate any applicable law or regulation.
4.1. Your Obligations With Respect to Cookies Used by the Choozle Smart Container Tag on Visitors to Your Website
The Choozle Smart Container Tag may store cookies on computers used by those who visit your website (“Visitors”). These cookies contain values that allow Choozle to detect if the Visitor is a returning Visitor or a first-time Visitor to your web page(s) when the Visitor last visited the web page(s), and if you are conducting A/B testing, what test group the Visitor is in. Unless you direct Choozle to do so, such as by associating an identity with the Visitor, no Personally Identifiable Information relating to the Visitor is stored within these cookies.
To opt-out of these advertising partners, go to http://www.networkadvertising.org/choices/. If you’re using the Service on behalf of a client, you shall ensure that such client complies with this section. You are responsible for the acts and omissions of your clients in connection with this section.
4.2. Your Obligations With Respect to Visitor Information
The default Visitor data collected and tracked by Choozle’s Service is anonymous, behavioral information about your Visitors’ activities and actions on your web page(s). However, Choozle’s Service allows you to link this Visitor data with Personally Identifiable Information that you have collected regarding the Visitor.
You represent and warrant that:
- You have obtained all required consents and authorizations from your website Visitors relating to the use of such cookies.
- You may disclose Visitor data, including Personally Identifiable Information, to certain third-party services providers to obtain such services.
You further acknowledge and agree that your indemnity obligation under Section 6 (“Indemnification”) below applies to any third party claims relating to your disclosure of any Visitor data or Client Data, including Personally Identifiable Information, to Choozle.
4.3. European Union Controller and Processor Designation
Under the definitions of “Controller” and “Processor” in EU law, we are in some cases a Controller of data and in some cases a Processor. We are a Controller, for example, over our personalized user interest segments that we create when we have proper permissions.
When we collect data for personalization from requests for ads that we receive as described above, under EU law, we will ensure that we have data subject consent or authorization that is necessary to do so. We process data for other purposes when we have a legitimate interest in doing so and that interest is not outweighed by the rights or freedoms of individual data subjects.
Your Choozle account is protected by a username and password and should be accessed only by you or authorized third parties. You should take steps to protect against unauthorized access to or use of your username and password. You should also remember to log off when using any shared computer or device.
Choozle has implemented reasonable security mechanisms to protect your information and Client Data from loss, misuse and unauthorized access, disclosure, alteration, and destruction. Examples of these security mechanisms include limited and password-protected access, high-security public and private keys, encryption on processed data, and SSL encryption to protect the transmission of data.
However, please keep in mind that no security system is impenetrable. It may be possible for third parties to intercept or access Client Data, the information you provide to Choozle, the information we compile on your behalf, or information that we collect about you. Choozle cannot guarantee the security of such information and is not responsible for unauthorized access to client accounts or Client Data.
4.5. Choozle Limits Access to Your Information
Choozle will not knowingly permit access to, or otherwise divulge to a third party, any Personally Identifiable Information compiled for you except for the express purpose of generating reports which have been requested, authorized, or approved by you or unless acting under a good faith belief that such action is necessary to (i) conform to legal requirements or comply with legal process; (ii) protect and defend the rights or property of Choozle; (iii) enforce our agreements with clients or visitors to our Website; (iv) troubleshoot problems with the Services; or (v) create aggregate reports as set forth below.
4.6. Choozle Platforms Not Available for Websites Directed to Children
You may not use the Choozle Platforms in connection with (i) any website or portion of a website labeled or described as a “Kid’s” or “Children’s” website; (ii) any website or portion of a website directed at individuals under the age of 13; or (iii) any website or portion of a website that you have reason to know is used primarily by individuals under the age of 13.
- PROPRIETARY RIGHTS; RESTRICTIONS ON USE
5.1. Choozle’s Exclusive Right to Manage Material
You acknowledge that any Material you post, upload, or submit to the Platform may be edited, removed, deleted, modified, published, transmitted, and displayed by Choozle in its sole discretion and without your permission, and you waive any rights you may have in having the material altered or changed in a manner not agreeable to you. However, Choozle shall not be responsible for controlling or editing any Material. Choozle cannot ensure removal of inappropriate or unlawful Material. Under no circumstances will we be held liable for removing, disabling or restricting access to or the availability of Material or for any failure to do so.
Except for the limited licenses expressly granted herein, Choozle expressly reserves all right, title and interest in and to the Choozle Smart Container Tag, content on the Choozle Website, aggregate data and general trend reports as well as all processing, analytics, and other software and technology used by Choozle in the analysis of your website and the provision of the Choozle Platform (“Choozle Technology and Service”), including, without limitation, any derivatives, improvements, enhancements or extensions of the Choozle Technology and Service conceived, reduced to practice or otherwise developed on or on behalf of Choozle, all of which are valuable assets of Choozle, and any copyright, patent or trademark or other intellectual property rights, or federal or state right, pertaining thereto.
5.3. Restrictions on Use and Compliance
You shall not use, or allow third parties to: (i) use of the Choozle Technology and Service, except pursuant to the limited rights expressly granted in this Agreement; (ii) use the Services in any manner that is inconsistent with user documentation, if any, supplied to you by Choozle or inconsistent with Choozle’s standard security procedures, if any, accessible through your user interface; (iii) attempt to reverse engineer, hack into, or compromise any aspect of the Choozle Technology or Service, or attempt to access data or account information of any other customer of Choozle; (iv) remove, obscure, or alter any legal notices, including notices of intellectual property rights appearing in or on any materials delivered to you by Choozle; (v) use, post, transmit, or introduce any device, software, or routine that interferes or attempts to interfere with the operation of the Choozle Technology and Service; (vi) use the Choozle Technology and Service for academic research or research unrelated to your Visitors or the web page(s) registered for use with the Services, or for contemplated litigation, scholarship, or any other unintended purpose; (vii) post or transmit any libelous, defamatory, indecent, obscene, abusive or pornographic message, data, image, or program; (viii) post or transmit any message, data, image, or program that would violate any property rights of others using the Services; (ix) upload or download files that contain software or other material protected by intellectual property laws, rights of privacy or publicity, or any other applicable law unless you own or control the rights to such files or have received all necessary consents; or (x) use the Services to threaten, harass, or otherwise violate the legal rights (including rights of privacy and publicity) of others; (xi) use the Services in any way or for any purpose that would violate, or would have the effect of violating, any applicable laws, rules or regulations or any rights of any third parties, including, without limitation, any law or right regarding any copyright, patent, trademark, trade secret, music, image, or other proprietary or property right, false advertising, unfair competition, defamation, invasion of privacy, or rights of celebrity.
5.4. Intellectual Property
The Site and Service contains intellectual property owned by Choozle, including, without limitation, trademarks, copyrights, proprietary information, and other intellectual property as well as the Choozle/(choozle.com) name, logo, all designs, content, layouts, text, graphics, photographs, other files, and the selection and arrangement thereof. You may not copy, modify, publish, transmit, participate in the transfer or sale of, create derivative works from, distribute, display, reproduce or perform, or in any way exploit in any format whatsoever the Site or Service, including without limitation any content or intellectual property therein, in whole or in part without our prior written consent in each instance. You agree not to engage in any of the following prohibited activities: (a) copying, distributing, or disclosing any part of the Site or Service in any medium, including without limitation by any automated or non-automated “scraping”; (b) collecting or harvesting any personally identifiable information, including account names, from the Site or Service; (c) using the Site or Service for any commercial solicitation purposes; (d) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (e) interfering with the proper working of the Site or Service; (f) using the Site or Service or any part thereof for any commercial purpose not expressly authorized herein; or (g) using the Site or Services or any part thereof on your website or the website of a third party. We may, without prior notice, change the Service; stop providing the Service or features of the Service, to you or to users generally; or create usage limits for the Service. We reserve the right to immediately remove you from the Site and Service without refund if you are caught violating these terms.
You agree to indemnify, hold harmless and (only if requested by Choozle) defend Choozle and its officers, directors, employees, agents, or affiliates, at your expense, against any and all claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs, or expenses (including, without limitation, reasonable attorney’s fees) incurred by Choozle or any of its officers, directors, employees, agents, or affiliates, arising out of or relating to (i) your breach of any term or condition of this Agreement, (ii) your use of the Services, or (iii) your unauthorized use of the Choozle Smart Container Tag or (iv) a claim by a Visitor. In such instances, Choozle will provide you with electronic and written notice of such third-party claim, action, proceeding, or suit to the last email address and mailing address furnished to Choozle within 30 days of learning of such claim. You shall cooperate as fully as reasonably required in the defense of any claim. Choozle reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.
- REPRESENTATIONS AND WARRANTIES
You represent and warrant to Choozle that you (i) own all right, title and interest in and to the URLs of your website, Materials, and Client Data; (ii) own or have obtained all rights necessary to publish all of the content published on or through your website and the user interface of your website; and (iii) have obtained all necessary consent(s) from Visitors required to enable the Services and allow Choozle to use any associated data or information.
- DISCLAIMERS AND LIMITATIONS ON LIABILITY
8.1. General Disclaimers
The information, reports, and services included in or available through the Services may include inaccuracies or typographical errors. Changes are periodically added to the information herein. Choozle and its respective vendors may make improvements and changes in the Services at any time, without obligation to notify any person or entity of such changes.
Choozle does not represent or warrant that (1) the Services will be error-free or accessible at particular times, (2) defects will be corrected, (3) the Services or server(s) that make it available, are free of viruses or other harmful components, or (4) the use or the results of the use of the Services or the materials made available as part of the Services will be correct, accurate, timely, or otherwise reliable. You specifically agree that Choozle shall not be responsible for unauthorized access to or alteration of your data.
8.2. Disclaimers of Warranties
THE SERVICES, THE CHOOZLE SMART CONTAINER TAG, AND ANY REPORTS DERIVED THEREFROM ARE PROVIDED “AS IS” AND THERE ARE NO WARRANTIES, CLAIMS, OR REPRESENTATIONS MADE BY CHOOZLE EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICES, THE CHOOZLE SMART CONTAINER TAG, THE REPORTS, OR ANY DOCUMENTATION, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. CHOOZLE DOES NOT WARRANT THAT THE SERVICES, THE CHOOZLE SMART CONTAINER TAG, OR ANY REPORTS DERIVED THEREFROM WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE CHOOZLE PLATFORMS. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU IN FULL.
8.3. Limitations on Liability
CHOOZLE AND ITS OFFICERS, DIRECTORS, AND EMPLOYEES WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA COLLECTED THROUGH THE SERVICES), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF CHOOZLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION CONTAINED IN THIS PARAGRAPH SHALL APPLY REGARDLESS OF THE FAILURE OF THE EXCLUSIVE REMEDY PROVIDED IN THE FOLLOWING PARAGRAPH. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU IN FULL.
CHOOZLE’S CUMULATIVE LIABILITY TO YOU OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE AGGREGATE FEES PAID BY YOU TO CHOOZLE FOR USE OF THE SERVICES IN THE 12 MONTHS PRECEDING THE CLAIM.
- SERVICE FAILURES
Choozle does not guarantee, and shall have no liability for, any Services downtime, including, without limitation, any downtime (i) caused by failures of or previously scheduled maintenance to Choozle’ equipment or servers; (ii) caused by outages to any public Internet backbones, networks, or servers; (iii) caused by any failures of your equipment, systems, or local access services; or (iv) relating to events beyond Choozle’ control, such as strikes, riots, insurrections, fires, floods, explosions, war, governmental actions, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where Choozle or your servers are located or co-located.
- U.S. GOVERNMENT RIGHTS
If the use of the Service is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense (“DOD”) acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), the Government’s rights in the Software, including its rights to use, modify, reproduce, release, perform, display or disclose the Software or Documentation, will be subject in all respects to the commercial license rights and restrictions provided in this Agreement.
- TERM AND TERMINATION
Choozle may terminate or suspend access to the Services immediately, without prior notice or liability, if you breach this Agreement or for any other reason.
11.2. Termination of Choozle Platform
Either party may terminate this agreement at any time and for any reason. To terminate your use of the Choozle Platform, please follow the steps described in Section 2.7 (“Account Cancellation”).
Upon any termination of this agreement (i) Choozle will cease providing the Choozle Platform; (ii) you will delete all copies of the Choozle Smart Container Tag from your web page(s); (iii) any outstanding balance payable by you to Choozle will become immediately due and payable and any collection expenses incurred will be included in the amount owed; (iv) you will not be entitled to any refunds of any usage fees or any other fees; and (v) all of your historical report data will no longer be available to you through Choozle.
In addition, upon termination of this agreement, you shall delete all copies of the Choozle Smart Container Tag from such web page including any tag or script containers. You understand and acknowledge that, unless and until the Choozle Smart Container Tag is deleted from a web page, the Choozle Smart Container Tag may continue to track information on such web page on an automated basis and you shall be responsible for any associated fees.
- MODIFICATIONS TO THIS AGREEMENT AND OTHER POLICIES
Our employees are not authorized to vary the terms of this Agreement. This Agreement may be modified only (i) by obtaining our written consent in an agreement signed by an officer of Choozle or (ii) as set forth below in the immediately following paragraph.
You agree that Choozle may modify the terms of this Agreement or any policy governing the Services from time to time and that your right to access the Services is conditioned on an ongoing basis with your compliance with the then-current version of this Agreement. We will notify you of any material revisions or modifications to the Agreement by (i) posting a notice on the Choozle Website for 30 days following any revisions or modifications to this Agreement; (ii) posting a notice on the Choozle Website the first time that you visit the Website following such revisions or modifications; or (iii) providing direct notice of such changes in a communication to your client account. By continuing to use the Services following receipt of such notice, you consent to the revised or modified terms of this Agreement.
- MISCELLANEOUS; ARBITRATION, CHOICE OF LAW, AND VENUE
Choozle shall be excused from performance hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control.
13.2. Severability and Waiver
If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to reflect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.
Choozle’s acquiescence in the breach of a provision of this Agreement or failure to act upon such breach does not waive Choozle’s right to act with respect to subsequent or similar breaches. Likewise, the delay or failure of Choozle to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
13.3. Entire Agreement
This Agreement (including any amendment thereto) represents the complete agreement between us concerning its subject matter and supersedes all prior agreements and representations between the parties.
13.4. Agreement to Arbitrate
Certain portions of this Section 13.4 are deemed to be a “written agreement for arbitration” pursuant to the Federal Arbitration Act. You and Choozle agree that we intend that this Section 13.4 satisfies the “writing” requirement of the Federal Arbitration Act.
If any controversy, allegation, or claim arises out of or relates to the Services, the Website, your Plan, or this Agreement, including, but not limited to, claims for indemnification, contribution, or cross-claims in a pending action involving one or more third parties (collectively, a “Dispute”), then either you or Choozle may elect to submit the Dispute to be finally and exclusively resolved by binding arbitration before a sole arbitrator in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association. If an in-person arbitration hearing is required, then it will be conducted in Denver, Colorado. All parties to the arbitration will have the right, at their own expense, to be represented by an attorney or other advocates of their choosing. You and Choozle will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require Choozle to pay a greater portion or all of such fees and costs in order for this Section 13.4 to be enforceable, then Choozle will have the right to elect to pay the fees and costs and proceed to arbitration.
In arbitration, as with a court, the arbitrator must honor the terms of this Agreement and can award the prevailing party damages and other relief (including attorneys’ fees). However, WITH ARBITRATION (i) THERE IS NO JUDGE OR JURY; (ii) THE ARBITRATION PROCEEDINGS AND ARBITRATION OUTCOME ARE SUBJECT TO CERTAIN CONFIDENTIALITY RULES; AND (iii) JUDICIAL REVIEW OF THE ARBITRATION OUTCOME IS LIMITED.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES OR IT WILL BE FOREVER BARRED.
TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AGREE THAT NO ARBITRATION SHALL BE JOINED WITH ANY OTHER; THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A REPRESENTATIVE OR CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; AND THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC OR ANY OTHER PERSONS.
13.5. Injunctive Relief
The foregoing provisions of this Section 13.4 will not apply to any (i) legal action taken by you or Choozle to seek an injunction or other equitable relief or (ii) controversy, allegation, or claim that arises out of relates to your or Choozle’s actual or alleged intellectual property rights.
13.6. Choice of Law and Forum
This Agreement shall be governed by and construed under the laws of the state of Colorado without reference to its conflict of law principles. Except to the extent that arbitration is elected in accordance with Section 13.4 above, any action or proceeding relating to a Dispute may only be instituted in state or federal court in Denver, Colorado. Accordingly, each party agrees to submit to the exclusive and personal jurisdiction of the courts located in Denver, Colorado. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to this Agreement. The Choozle Smart Container Tag and Choozle Technology are controlled by U.S. Export Regulations, and may not be exported to or used by embargoed countries or individuals.
Choozle may deliver notice to you under this Agreement by means of electronic mail, a general or specific notice on the Services, a communication to your Choozle account or by written communication delivered by first class U.S. mail to your address on record.
Any notices to Choozle must be sent to:
3513 Brighton Blvd
Denver, CO 80216
via first class or air mail or overnight courier, and are deemed given upon receipt.
13.8. Transfer of Rights
You may not assign or otherwise transfer any of your rights hereunder without Choozle’s prior written consent, and any such attempt is void. The relationship between Choozle and you is not one of a legal partnership relationship but is one of the independent contractors. This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto.
The headings of the sections contained in this Agreement are for convenience only and shall not be deemed to control or affect the meaning or construction of any provision of this Agreement.
- SPECIAL ADMONITIONS FOR INTERNATIONAL USE
Recognizing the global nature of the Internet and the rapid changes around online privacy, you agree to comply with all local rules regarding online conduct and acceptable content. Without limiting the foregoing, you agree to comply with all applicable laws regarding the transmission of technical data exported to or from the United States or the country in which you operate or reside and to comply with any other local laws affecting the Services.
Terms of Service Addendum – Customization Services / White Label Services
This Addendum only applies to the extent you have paid Choozle the applicable fees for Customization Services, and Choozle has agreed to provide you with Customization Services.
- CUSTOMIZATION SERVICES
If Company desires to engage Choozle to provide services related to the customization, modification, hosting or enhancement of the Services (as defined in the Terms of Service) for Company or an end user (“Customization Services”), and Choozle agrees to perform such Customization Services, the parties shall agree on the scope of such Customization Services. Either party may terminate this Addendum at any time upon thirty (30) days written notice to the other party.
1.2. Company Assistance
Company shall provide Choozle with such resources, information, and assistance as Choozle may reasonably request in connection with the performance of the Customization Services. The company acknowledges and agrees that Choozle’s ability to successfully perform the Customization Services in a timely manner is contingent upon its receipt from the Company of the information, resources, and assistance reasonably requested. Choozle shall have no liability for (a) deficiencies in the Customization Services resulting from the acts or omissions of Company, its agents, or employees or (b) performance of the Customization Services in accordance with Company’s instructions.
1.3. Performance of Customization Services
Choozle may perform the Customization Services at that location selected by Choozle. Choozle will have sole discretion to determine the personnel assigned to perform the Customization Services. Nothing in the Agreement will restrict Choozle from performing similar services for other customers. Company agrees and acknowledges that Choozle shall have the sole and exclusive right to control, operate, administer, and modify its systems used to provide the Services. From time to time, Choozle may issue an update to the Service which may add, modify, or remove features from the Service. These updates may be pushed out automatically with little or no notice. Choozle may immediately suspend Company or its end users access to the Service for any reason in its reasonable discretion. Choozle will make reasonable efforts to monitor the uptime of the hosting account, if Choozle provides any hosting services, but does not guarantee or warrant its reliability due to various external Internet factors.
Without limiting any applicable warranties set forth in the Agreement, the Customization Services will be deemed accepted upon performance and any items delivered pursuant to this Addendum will be deemed accepted upon delivery to Company.
- OWNERSHIP; LICENSE
“Work Product” means (a) all software, tools, routines, programs, designs, technology, ideas, know-how, processes, techniques and inventions that Choozle makes, develops, conceives or reduces to practice, whether alone or jointly with others, in the course of performing the Customization Services; (b) all enhancements, modifications, improvements and derivative works of each and any of the foregoing; and (c) all copyrights, trademarks, service marks, trade secrets, patents, patent applications, and other proprietary rights related to each and any of the foregoing. “Deliverables” means the items provided by Choozle to Company as part of the Customization Services, including Work Product and any items specifically designated or characterized as deliverables.
2.2. Choozle Property
As between the parties, Choozle owns all intellectual property rights in all Work Product and Deliverables, and (a) all software, tools, routines, programs, designs, technology, ideas, know-how, processes, techniques and inventions that Choozle makes, develops, or reduces to practice, whether alone or jointly with others or otherwise obtained by Choozle prior to, or independently of, this Agreement;(b) all enhancements, modifications, improvements and derivative works of each and any of the foregoing; and (c) all copyrights, trademarks, service marks, trade secrets, patents, patent applications and other proprietary rights related to each and any of the foregoing (collectively, the “Choozle Property”).
2.3. Trademark License
Subject to the terms and conditions of this Agreement, Company grants to Choozle a non-exclusive, worldwide, fully paid up a royalty-free license, to use any trademarks, service marks, or logos provided by Company (the “Company Marks”) in connection with providing the Services to Company. Choozle agrees to use the Company Marks in accordance with the Company trademark guidelines provided to Choozle from time to time.
2.4. Service License
Subject to the terms and conditions of this Agreement, including Company’s payment of all applicable fees under this Agreement and any Addendum, Choozle hereby grants to Company a non-exclusive, non-transferable, non-sublicensable, right and license, under all of Choozle’s intellectual property rights, to provide its authorized end users with access to the Service using the Customized Services portal. Any additional rights with respect to the Services that are not expressly granted by Choozle pursuant to this Agreement are deemed withheld. Company shall ensure that its customers and users agree to Choozle’s terms and conditions of use for the service or any other terms provided by Choozle. Company shall be responsible for the acts and omissions of its users and customers and shall ensure that is customers agree to Choozle’s standard terms and conditions. Company shall cooperate with Choozle in connection with collecting any payments owed to Choozle hereunder.
Except as expressly allowed by this Agreement, Company shall not: (i) distribute, lease, license, sublicense, or otherwise disseminate the Services or any component or portion thereof to any third party; (ii) modify, enhance, translate, supplement, create derivative works from, reverse engineer, decompile, or otherwise reduce to human-readable form the Services or any component or portion thereof; (iii) sell, license, or otherwise distribute the Services or any component or portion thereof; (iv) make any copies of the Services or any component or portion thereof; or (v) use any portion of the Services as a standalone program or in any way independently from the Services. The Company will not provide end users with altered version(s) of the Services and will not operate or combine the Services with other products, materials or services in a manner inconsistent with the uses contemplated in this Agreement. The company will not remove, alter, modify, relocate or erase any copyright notice or legend denoting proprietary interests of Choozle contained in the Services or software; and will reproduce any such notices, legends, or proprietary markings on authorized copies related to the Services that Company may distribute. Company shall be responsible for all trademarks, logos, design, media, text, graphics, animations, audio components, video components, photos, or any other information (hereinafter collectively referred to as “Content”) posted and activity that occurs with the Services (even when Content is posted by others who have access to the Service through Company) and represents that it has the right to provide Choozle with the Content. Choozle may remove any Content that Choozle determines in its sole discretion to be unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene, or otherwise objectionable or violates any Party’s intellectual property or this Agreement.
2.6. Intellectual Property
The Site and Service contain intellectual property owned by Choozle, including, without limitation, trademarks, copyrights, proprietary information, and other intellectual property as well as the Choozle (choozle.com) name, logo, all designs, content, layouts, text, graphics, photographs, other files, and the selection and arrangement thereof. You may not copy, modify, publish, transmit, participate in the transfer or sale of, create derivative works from, distribute, display, reproduce or perform, or in any way exploit in any format whatsoever the Site or Service, including without limitation any content or intellectual property therein, in whole or in part without our prior written consent in each instance. You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Site or Service in any medium, including without limitation by any automated or non-automated “scraping”; (ii) collecting or harvesting any personally identifiable information, including account names, from the Site or Service; (ii) using the Site or Service for any commercial solicitation purposes; (iv) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (v) interfering with the proper working of the Site or Service; (vi) using the Site or Service or any part thereof for any commercial purpose not expressly authorized herein; or (vii) using the Site or Services or any part thereof on your website or the website of a third party. We may, without prior notice, change the Service; stop providing the Service or features of the Service, to you or to users generally; or create usage limits for the Service. We reserve the right to immediately remove you from the Site and Service, without refund, if you are caught violating these terms.
- LIMITED WARRANTY
Choozle warrants to Company that the Customization Services will be of a professional quality conforming materially any documentation published by Choozle. For any breach of this warranty, Company’s sole remedy and Choozle’s sole obligation will be for Choozle to re-perform the non-conforming service and, if after a reasonable number of attempts, Choozle is unable to provide Customization Services that comply with the warranty, Company may terminate this Addendum. Any claim under this warranty must be made to Choozle in writing.