Terms of Service
Last Updated: November 20, 2020
This Toka Loyalty Subscription Terms of Service ("Agreement") is entered into by and between Toka Loyalty, LLC ("Toka Loyalty") and the entity or person placing an order for or accessing any Services ("Client" or "you"). If you are accessing or using the Services on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to "you" or "Client" reference your company.
This Agreement permits Client to purchase subscriptions to online software-as-a-service products and other services from Toka Loyalty pursuant to any Toka Loyalty ordering documents, online registration, order descriptions or order confirmations referencing this Agreement ("Order Form(s)") and sets forth the basic terms and conditions under which those products and services will be delivered. This Agreement will govern Client's initial purchase on the Effective Date as well as any future purchases made by Client that reference this Agreement.
The "Effective Date" of this Agreement is the date which is the earlier of (a) Client's initial access to any Service (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this Agreement.
Modifications to this Agreement: From time to time, Toka Loyalty may modify this Agreement. Unless otherwise specified by Toka Loyalty, changes become effective for Client upon renewal of Client's current Subscription Term (as defined below) or entry into a new Order Form. Toka Loyalty will use reasonable efforts to notify Client of the changes through communications via Client's account, email or other means. Client may be required to click to accept or otherwise agree to the modified Agreement before renewing a Subscription Term or entering into a new Order Form, and in any event continued use of the Services after the updated version of this Agreement goes into effect will constitute Client's acceptance of such updated version. If Toka Loyalty specifies that changes to the Agreement will take effect prior to Client's next renewal or order (such as for legal compliance or product change reasons) and Client objects to such changes, Client may terminate the applicable Subscription Term and receive as its sole remedy a refund of any fees Client has pre-paid for use of the applicable Services for the terminated portion of the Subscription Term.
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING ANY SERVICES, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE ANY SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT. PLEASE READ IT CAREFULLY.
"Admin Portal" means Toka Loyalty's user interface for accessing and administering the Services that Client may access via the web.
"Affiliate" means any entity under the control of Client where "control" means ownership of or the right to control greater than 50% of the voting securities of such entity.
“Communications with People” means Client’s communications with People, including but not limited to emails, SMS and/or MMS text messages, communications through websites and transactions, and similar opt-in communications.
"Contractor" means an independent contractor or consultant who is not a competitor of Toka Loyalty.
"Client Data" means any data of any type that is submitted to the Services by or on behalf of Client, including without limitation: (a) data submitted, uploaded or imported to the Services by Client (including from Third Party Platforms) and (b) data provided by or about People (including but not limited to profile information, points and rewards history, chat and message logs) that are collected using the Services.
"Client Properties" means Client's websites, apps, point of sales software and machines or other offerings owned and operated by (or for the benefit of) Client through which Client uses the Services.
"Documentation" means the technical user documentation provided with the Services.
"Feedback" means comments, questions, suggestions or other feedback relating to any Toka Loyalty product or service.
"Laws" means all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data.
"People" (in the singular, "Person") means Client's end user customers, potential customers, and other users of and visitors to the Client Properties and/or the Toka Loyalty Apps provisioned for Client.
"Permitted User" means an employee or Contractor of Client or its Affiliate who is authorized to access the Service.
"Sensitive Personal Information" means any of the following: (i) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards ("PCI DSS"); (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act ("HIPAA"); or (iii) any other personal data of an EU citizen deemed to be in a "special category" (as identified in EU General Data Protection Regulation or any successor directive or regulation).
"Services" means Toka Loyalty's proprietary software-as-a-service solution(s), including the Admin Portal, Toka Loyalty application programming interfaces (APIs), Toka Loyalty Code and Toka Loyalty Apps, as described in the applicable Order Form.
"Taxes" means any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Toka Loyalty.
"Third-Party Platform" means any software, software-as-a-service, data sources or other products or services not provided by Toka Loyalty that are integrated with Services as described in the Documentation.
"Toka Loyalty App" means any web application, internet browser extension, mobile application or desktop client software included in the applicable Service that is made available by Toka Loyalty.
2.1. Services Overview. Toka Loyalty's Services are a suite of customer loyalty and communications software-as-a-service solutions offered through a single platform. The Services are designed to enable Client to manage customer loyalty programs and communicate with People The Services are designed to provide a set of Toka Loyalty Apps. Depending on the Client’s setup, the Services may (or may not) also include Toka Loyalty Code deployed on Client Properties to enable integrations.
2.2. Provision of Services. Each Service is provided on a subscription basis for a set term designated on the Order Form (each, a "Subscription Term"). Toka Loyalty may also offer Professional Services (as defined in Section 10) related to certain Services. Client will purchase and Toka Loyalty will provide the specific Services and related Professional Services (if any) as specified in the applicable Order Form.
2.3. Access to Services. Client may access and use the Services solely for its own benefit and in accordance with the terms and conditions of this Agreement, the Documentation and any scope of use restrictions designated in the applicable Order Form (including without limitation the number of People tracked). Use of and access to the Services is permitted only by Permitted Users. If Client is given API keys or passwords to access the Services on Toka Loyalty's systems, Client will require that all Permitted Users keep API keys, user ID and password information strictly confidential and not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. If Client is accessing the Services using credentials provided by a third party (e.g., Google), then Client will comply with all applicable terms and conditions of such third party regarding provisioning and use of such credentials. Client will be responsible for any and all actions taken using Client's accounts and passwords. If any Permitted User who has access to a user ID is no longer an employee (or Contractor, as set forth below) of Client, then Client will immediately delete such user ID and otherwise terminate such Permitted User's access to the Service.
2.4. Toka Loyalty Apps. To the extent Toka Loyalty provides Toka Loyalty Apps for use with the Services, subject to all of the terms and conditions of this Agreement, Toka Loyalty grants to Client a limited, non-transferable, non-sublicensable, non-exclusive license during any applicable Subscription Term to use the object code form of the Toka Loyalty Apps internally, but only in connection with Client's use of the Service and otherwise in accordance with the Documentation and this Agreement.
2.5. Deployment of Toka Loyalty Code. Subject to all of the terms and conditions of this Agreement, Toka Loyalty grants to Client a limited, non-transferable, non-sublicensable, non-exclusive license during any applicable Subscription Term to copy the Toka Loyalty Code in the form provided by Toka Loyalty on Client Properties solely to support Client's use of the Service and otherwise in accordance with the Documentation and this Agreement. Client must implement Toka Loyalty Code on the Client Properties in order to enable certain features of the Services. Client will implement all Toka Loyalty Code in strict accordance with the Documentation and other instructions provided by Toka Loyalty. Client acknowledges that any changes made to the Client Properties after initial implementation of Toka Loyalty Code may cause the Services to cease working or function improperly and that Toka Loyalty will have no responsibility for the impact of any such Client changes.
2.6. Contractors and Affiliates. Client may permit its Contractors and its Affiliates' employees and Contractors to serve as Permitted Users, provided Client remains responsible for compliance by such individuals with all of the terms and conditions of this Agreement, and any use of the Services by such individuals is for the sole benefit of Client.
2.7. General Restrictions. Client will not (and will not permit any third party to): (a) rent, lease, provide access to or sublicense the Services to a third party; (b) use the Services to provide, or incorporate the Services into, any product or service provided to a third party; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to Toka Loyalty); (d) copy or modify the Services or any Documentation, or create any derivative work from any of the foregoing; (e) remove or obscure any proprietary or other notices contained in the Services (including without limitation (i) the "Powered by Toka Loyalty" designation that may appear as part of the deployment of the Services on Client Properties and/or that may appear on the Toka Loyalty Apps provisioned for Client and (ii) notices on any reports or data printed from the Services); or (f) publicly disseminate information regarding the performance of the Services.
2.8. Toka Loyalty APIs. If Toka Loyalty makes access to any APIs available as part of the Services, Toka Loyalty reserves the right to place limits on access to such APIs (e.g., limits on numbers of calls or requests). Further, Toka Loyalty may monitor Client's usage of such APIs and limit the number of calls or requests Client may make if Toka Loyalty believes that Client's usage is in breach of this Agreement or may negatively affect the Services (or otherwise impose liability on Toka Loyalty).
2.9. Trial Subscriptions. If Client receives free access or a trial or evaluation subscription to the Service (a "Trial Subscription"), then Client may use the Services in accordance with the terms and conditions of this Agreement for a period of thirty (30) days or such other period granted by Toka Loyalty (the "Trial Period"). Trial Subscriptions are permitted solely for Client's use to determine whether to purchase a paid subscription to the Services. Trial Subscriptions may not include all functionality and features accessible as part of a paid Subscription Term. If Client does not enter into a paid Subscription Term, this Agreement and Client's right to access and use the Services will terminate at the end of the Trial Period. Toka Loyalty has the right to terminate a Trial Subscription at any time for any reason. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, TOKA LOYALTY WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT, OR OTHER OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS.
3.1. Rights in Client Data. As between the parties, Client will retain all right, title and interest (including any and all intellectual property rights) in and to the Client Data as provided to Toka Loyalty. Subject to the terms of this Agreement, Client hereby grants to Toka Loyalty a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Client Data solely to the extent necessary to provide the Services to Client.
3.2. Storage of Client Data. Toka Loyalty does not provide an archiving service. Toka Loyalty agrees only that it will not intentionally delete any Client Data from any Service prior to termination of Client's applicable Subscription Term. Toka Loyalty expressly disclaims all other obligations with respect to storage.
3.3. Client Obligations.
a) In General. Client is solely responsible for the accuracy, content and legality of all Client Data. Client represents and warrants to Toka Loyalty that Client has all necessary rights, consents and permissions to collect, share and use all Client Data as contemplated in this Agreement (including granting Toka Loyalty the rights in Section 3.1 (Rights in Client Data)) and that no Client Data will violate or infringe (i) any third party intellectual property, publicity, privacy or other rights, (ii) any Laws, or (iii) any terms of service, privacy policies or other agreements governing the Client Properties or Client's accounts with any Third-Party Platforms. Client further represents and warrants that all Client Data complies with the AUP. Client will be fully responsible for any Client Data submitted to the Services by any Person as if it was submitted by Client.
b) No Sensitive Personal Information. Client specifically agrees not to use the Services to collect, store, process or transmit any Sensitive Personal Information. Client acknowledges that Toka Loyalty is not a Business Associate or subcontractor (as those terms are defined in HIPAA) or a payment card processor and that the Services are neither HIPAA nor PCI DSS compliant. Toka Loyalty will have no liability under this Agreement for Sensitive Personal Information, notwithstanding anything to the contrary herein.
c) Compliance with Laws.
i. General. Client agrees to comply with all applicable Laws in its use of the Services. Without limiting the generality of the foregoing, Client will not engage in any unsolicited advertising, marketing, or other activities using the Services. With respect to Communications with People and Client Data, Client shall be responsible for compliance with all applicable United States Federal and State, local, and foreign laws and regulations, including but not limited to (i) any applicable laws that govern online promotions, offers, gift cards, coupons, and/or gift certificates, data privacy and protection, intellectual property, the sending of electronic marketing messages (including without limitation the Telephone Consumer Protection Act (the “TCPA“), the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM“), the Children’s Online Privacy Protection Act, the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act of 2009 (“HIPAA“), and any other anti-spam laws and regulations), and the sending of SMS and/or MMS text messages (including but not limited to the TCPA, Federal Trade Commission and Federal Communications Commission rules, the National DNC list registry rules, various state laws, rules, and regulations that place restrictions on certain types of phone calls and text messages, and any other anti-spam laws and regulations); and (ii) laws and regulations that apply to commerce, including the Federal Trade Commission Act, Fair Credit Reporting Act, and Equal Credit Opportunity Act.
ii. Responsibility for Messages. For the avoidance of doubt, Client is solely responsible for the information or content submitted, posted, transmitted or made available through Client’s use of the Services. Client shall comply with all applicable laws and regulations relating to the sending of emails and/or text messages (“Messages“) and the protection and privacy of Client Data. Client acknowledges and agrees that Toka Loyalty does not control nor does it monitor Client’s Messages nor guarantees the accuracy, integrity, security or quality of such Messages. Client represents and warrants that: (a) Client is solely responsible for Messages; (b) Client has the legal right to use and send all Messages; (c) the timing and purpose of all Messages, campaigns and programs are in compliance with all applicable laws, rules and regulations; and (d) Toka Loyalty’s use of the Messages as directed for the purpose of delivering the Services shall not violate the rights of any third party or any laws, rules or regulations. With respect to email communications sent on Client’s behalf, Toka Loyalty and/or its respective affiliates or third-party service providers shall be an initiator but not a sender for purposes of CAN-SPAM and Client shall be deemed the sender of such messages and shall be solely responsible for complying with Client’s obligations as a sender. With respect to text message communications sent on Client’s behalf, Toka Loyalty and/or its respective affiliates or third party service providers shall be a provider but not a maker or initiator for purposes of the TCPA and Client shall be deemed the maker or initiator of such messages and shall be solely responsible for complying with Client’s obligations as a maker or initiator. Client agrees to only send permission-based Messages in connection with its use of the Services. “Permission-based” means that all recipients must have opted-in to receive Messages from Client.
iii. Consent. In addition, Client represents and warrants that Client has obtained and/or will obtain prior express consent to contact each wireless phone number that Client has delivered to and/or will deliver to Toka Loyalty (the “Recipient“) in connection with the provision of any Services and the intended Recipient is the current subscriber to, or the non-subscriber customary user of, the wireless phone number. If the Messages are initiated to induce the purchase of goods or services or to solicit a charitable contribution (“Solicitations“), Client represents and warrants that: (a) Client has incorporated an interactive opt-out mechanism; and (b) Client has, unless an exemption applies, obtained from the Recipient of any Solicitation, an express written agreement that meets the requirements set forth in Section 310.4(b)(1)(v)(A) of the FTC’s Telemarketing Sales Rule and Section 64.1200(f)(8) of the FCC’s Telephone Consumer Protection Act Rules. Upon request, Client shall provide reasonable proof of compliance with the provisions set forth in this Section and Toka Loyalty shall have no obligation to provide Services where Toka Loyalty reasonably believes that Client has not so complied.
3.4. Indemnification by Client. Client will indemnify, defend and hold harmless Toka Loyalty from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with any claim arising from or relating to any Client Data or breach or alleged breach by Client of Section 3.3 (Client Obligations). This indemnification obligation is subject to Client receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Client to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation of Toka Loyalty at Client's expense. Notwithstanding the foregoing sentence, (a) Toka Loyalty may participate in the defense of any claim by counsel of its own choosing, at its cost and expense and (b) Client will not settle any claim without Toka Loyalty's prior written consent, unless the settlement fully and unconditionally releases Toka Loyalty and does not require Toka Loyalty to pay any amount, take any action, or admit any liability.
3.5. Aggregated Anonymous Data . Notwithstanding anything to the contrary herein, Client agrees that Toka Loyalty may obtain and aggregate technical and other data about Client's use of the Services that is non-personally identifiable with respect to Client ("Aggregated Anonymous Data"), and Toka Loyalty may use the Aggregated Anonymous Data to analyze, improve, support and operate the Services and otherwise for any business purpose during and after the term of this Agreement, including without limitation to generate industry benchmark or best practice guidance, recommendations or similar reports for distribution to and consumption by Client and other Toka Loyalty customers. For clarity, this Section 3.5 does not give Toka Loyalty the right to identify Client as the source of any Aggregated Anonymous Data.
Toka Loyalty agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of any Service or Client Data. However, Toka Loyalty will have no responsibility for errors in transmission, unauthorized third-party access or other causes beyond Toka Loyalty's control.
5.1. General. The Services may support integrations with certain Third-Party Platforms. In order for the Services to communicate with such Third-Party Platforms, Client may be required to input credentials in order for the Services to access and receive relevant information from such Third-Party Platforms. By enabling use of the Services with any Third-Party Platform, Client authorizes Toka Loyalty to access Client's accounts with such Third-Party Platform for the purposes described in this Agreement. Client is solely responsible for complying with any relevant terms and conditions of the Third-Party Platforms and maintaining appropriate accounts in good standing with the providers of the Third-Party Platforms. Client acknowledges and agrees that Toka Loyalty has no responsibility or liability for any Third-Party Platform or any Client Data exported to a Third-Party Platform. Toka Loyalty does not guarantee that the Services will maintain integrations with any Third-Party Platform and Toka Loyalty may disable integrations of the Services with any Third-Party Platform at any time with or without notice to Client. For clarity, this Agreement governs Client's use of and access to the Services, even if accessed through an integration with a Third-Party Platform.
5.2. POS Integration. Toka Loyalty integrates with Client’s point of sales systems ("POS"). With this integration, purchase and other transactions as well as some parts of the customer profile are automatically sent to Toka Loyalty from POS, eliminating the need for duplicate data entry. POS integration also provides additional benefits in the areas of customer experience, ease of use by Client’s staff, as well as providing a foundation for many features that Toka Loyalty provides.
Client consents to and authorizes Client’s POS provider transmitting Client’s data to Toka Loyalty. Client acknowledges and agrees that, by using the Services, Client has requested through Toka Loyalty that Client’s POS provider transmit Client’s POS data to Toka Loyalty. This data is limited to that which is required for the operation of the Services.
Client understands that Client can revoke this authorization at any time by notifying Toka Loyalty, which will cease integration with Client’s POS within 72 hours of when Toka Loyalty receives such notification.
6.1. Toka Loyalty Technology. This is a subscription agreement for access to and use of the Services. Client acknowledges that it is obtaining only a limited right to the Services and that irrespective of any use of the words "purchase", "sale" or like terms in this Agreement no ownership rights are being conveyed to Client under this Agreement. Client agrees that Toka Loyalty or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Services and all Documentation, professional services deliverables and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (collectively, "Toka Loyalty Technology"). Except as expressly set forth in this Agreement, no rights in any Toka Loyalty Technology are granted to Client. Further, Client acknowledges that the Services are offered as an on-line, hosted solution, and that Client has no right to obtain a copy of any of the Services, except for Toka Loyalty Code and the Toka Loyalty Apps in the format provided by Toka Loyalty.
6.2. Feedback. Client, from time to time, may submit Feedback to Toka Loyalty. Toka Loyalty may freely use or exploit Feedback in connection with any of its products or services.
7.1. Subscription Term and Renewals. Unless otherwise specified on the applicable Order Form, each Subscription Term will automatically renew for additional twelve month periods unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current Subscription Term.
7.2. Fees and Payment . All fees are as set forth in the applicable Order Form and will be paid by Client within thirty (30) days of invoice, unless (a) Client is paying via Credit Card (as defined below) or (b) otherwise specified in the applicable Order Form. Except as expressly set forth in Section 9 (Limited Warranty) and Section 12 (Indemnification), all fees are non-refundable. The rates in the Order Form are valid for the initial twelve (12) month period of each Subscription Term and thereafter may be subject to a price adjustment. Client is responsible for paying all Taxes, and all Taxes are excluded from any fees set forth in the applicable Order Form. If Client is required by Law to withhold any Taxes from Client's payment, the fees payable by Client will be increased as necessary so that after making any required withholdings, Toka Loyalty receives and retains (free from any liability for payment of Taxes) an amount equal to the amount it would have received had no such withholdings been made. Any late payments will be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
7.3. Payment Via Credit Card. If you are purchasing the Services via credit card, debit card or other payment card ("Credit Card"), the following terms apply:
7.4. Suspension of Service. If Client's account is thirty (30) days or more overdue, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), Toka Loyalty reserves the right to suspend Client's access to the applicable Service (and any related services) without liability to Client until such amounts are paid in full. Toka Loyalty also reserves the right to suspend Client's access to the Services without liability to Client if Client's use of the Services is in violation of the AUP.
8.1. Term. This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Subscription Terms.
8.2. Termination for Cause. Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors' arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
8.3. Effect of Termination. Upon any expiration or termination of this Agreement, Client will immediately cease any and all use of and access to all Services (including any and all related Toka Loyalty Technology) and delete (or, at Toka Loyalty's request, return) any and all copies of the Documentation, any Toka Loyalty passwords or access codes and any other Toka Loyalty Confidential Information in its possession. Provided this Agreement was not terminated for Client's breach, Client may retain and use internally copies of all reports exported from any Service prior to termination. Client acknowledges that following termination it will have no further access to any Client Data input into any Service, and that Toka Loyalty may delete any such data as may have been stored by Toka Loyalty at any time. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
8.4. Survival. The following Sections will survive any expiration or termination of this Agreement: 2.7 (General Restrictions), 2.9 (Trial Subscriptions), 3.2 (Storage of Client Data), 3.4 (Indemnification by Client), 3.5 (Aggregated Anonymous Data), 6 (Ownership), 7.2 (Fees and Payment), 7.3 (Payment Via Credit Card), 8 (Term and Termination), 9.2 (Warranty Disclaimer), 11 (Limitation of Remedies and Damages), 12 (Indemnification), 13 (Confidential Information) and 15 (General Terms).
9.1. Limited Warranty . Toka Loyalty warrants, for Client's benefit only, that each Service will operate in substantial conformity with the applicable Documentation. Toka Loyalty's sole liability (and Client's sole and exclusive remedy) for any breach of this warranty will be, at no charge to Client, for Toka Loyalty to use commercially reasonable efforts to correct the reported non-conformity, or if Toka Loyalty determines such remedy to be impracticable, either party may terminate the applicable Subscription Term and Client will receive as its sole remedy a refund of any fees Client has pre-paid for use of such Service for the terminated portion of the applicable Subscription Term. The limited warranty set forth in this Section 9.1 will not apply: (i) unless Client makes a claim within thirty (30) days of the date on which Client first noticed the non-conformity, (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services, or (iii) to use provided on a no-charge, trial or evaluation basis.
9.2. Warranty Disclaimer . EXCEPT FOR THE LIMITED WARRANTY IN SECTION 9.1, ALL SERVICES AND PROFESSIONAL SERVICES ARE PROVIDED "AS IS". NEITHER TOKA LOYALTY NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. TOKA LOYALTY DOES NOT WARRANT THAT CUSTOMER'S USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES TOKA LOYALTY WARRANT THAT IT WILL REVIEW THE CUSTOMER DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER DATA WITHOUT LOSS OR CORRUPTION. TOKA LOYALTY SHALL NOT BE LIABLE FOR THE RESULTS OF ANY COMMUNICATIONS SENT OR ANY COMMUNICATIONS THAT WERE FAILED TO BE SENT USING THE SERVICES. TOKA LOYALTY SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, THIRD-PARTY PLATFORMS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF TOKA LOYALTY. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
Toka Loyalty will provide the professional consulting services ("Professional Services") purchased in the applicable Order Form. The scope of Professional Services will be as set forth in a Statement of Work referencing this Agreement and executed by both parties describing the work to be performed, fees and any applicable milestones, dependencies and other technical specifications or related information ("SOW"). Unless Professional Services are provided on a fixed-fee basis, Client will pay Toka Loyalty at the per-hour rates set forth in the Order Form (or, if not specified, at Toka Loyalty's then-standard rates) for any excess services. Client will reimburse Toka Loyalty for reasonable travel and lodging expenses as incurred. Client may use anything delivered as part of the Professional Services in support of authorized use of the Services and subject to the terms regarding Client's rights to use the Service set forth in Section 2 (Toka Loyalty Services) and the applicable SOW, but Toka Loyalty will retain all right, title and interest in and to any such work product, code or deliverables and any derivative, enhancement or modification thereof created by Toka Loyalty (or its agents).
11.1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) SHALL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
11.2. Liability Cap. TOKA LOYALTY'S AND ITS SUPPLIERS' ENTIRE LIABILITY TO CUSTOMER ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TOTOKA LOYALTY DURING THE PRIOR TWELVE (12) MONTHS UNDER THIS AGREEMENT.
11.3. Excluded Claims. "Excluded Claims" means any claim arising (a) from Client's breach of Section 2.7 (General Restrictions); (b) under Section 3.3 (Client Obligations) or 3.4 (Indemnification by Client); or (c) from a party's breach of its obligations in Section 13 (Confidential Information) (but excluding claims arising from operation or non-operation of any Service).
11.4. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 11 apply regardless of the form of action, whether in contact, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
Toka Loyalty will defend Client from and against any claim by a third party alleging that a Service when used as authorized under this Agreement infringes a U.S. patent, U.S. copyright, or U.S. trademark and will indemnify and hold harmless Client from and against any damages and costs finally awarded against Client or agreed in settlement by Toka Loyalty (including reasonable attorneys' fees) resulting from such claim, provided that Toka Loyalty will have received from Client: (i) prompt written notice of such claim (but in any event notice in sufficient time for Toka Loyalty to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Client. If Client's use of a Service is (or in Toka Loyalty's opinion is likely to be) enjoined, if required by settlement or if Toka Loyalty determines such actions are reasonably necessary to avoid material liability, Toka Loyalty may, in its sole discretion: (a) substitute substantially functionally similar products or services; (b) procure for Client the right to continue using such Service; or if (a) and (b) are not commercially reasonable, (c) terminate this Agreement and refund to Client the fees paid by Client for the portion of the Subscription Term that was paid by Client but not rendered by Toka Loyalty. The foregoing indemnification obligation of Toka Loyalty will not apply: (1) if such Service is modified by any party other than Toka Loyalty, but solely to the extent the alleged infringement is caused by such modification; (2) if such Service is combined with products or processes not provided by Toka Loyalty, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of such Service; (4) to any action arising as a result of Client Data or any third-party deliverables or components contained within such Service; (5) to the extent the alleged infringement is not caused by the particular technology or implementation of the Service but instead by features common to any similar product or service; or (6) if Client settles or makes any admissions with respect to a claim without Toka Loyalty's prior written consent. THIS SECTION 12 SETS FORTH Toka Loyalty's AND ITS SUPPLIERS' SOLE LIABILITY AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
Each party (as "Receiving Party") agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party ("Confidential Information"), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Toka Loyalty Technology, performance information relating to any Service, and the terms and conditions of this Agreement will be deemed Confidential Information of Toka Loyalty without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for Toka Loyalty, the subcontractors referenced in Section 15.8 (Subcontractors)), provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 13 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 13. The Receiving Party's confidentiality obligations will not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
At the request of Toka Loyalty, Client agrees to the issuance of a joint press release ("Press Release") on a mutually agreed upon date or the 90th day from the Effective Date, whichever is earlier. Each party will have the right to approve the Press Release in advance, but such approval will not be unreasonably delayed or withheld. Client also agrees to participate in other reasonable marketing activities that promote the benefits of the Services to other potential customers and to use of Client's name and logo on Toka Loyalty's web site and in Toka Loyalty promotional materials. Client agrees that Toka Loyalty may disclose Client as a customer of Toka Loyalty.
15.1. Assignment . This Agreement will bind and inure to the benefit of each party's permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party's assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 15.1 will be null and void.
15.2. Severability. If any provision of this Agreement will be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.
15.3. Governing Law; Dispute Resolution.
a) Direct Dispute Resolution. In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement, whether arising in contract, tort or otherwise, ("Dispute"), the parties shall first use their best efforts to resolve the Dispute. If a Dispute arises, the complaining party shall provide written notice to the other party in a document specifically entitled "Initial Notice of Dispute," specifically setting forth the precise nature of the dispute ("Initial Notice of Dispute"). If an Initial Notice of Dispute is being sent to Toka Loyalty it must be emailed to firstname.lastname@example.org.
CUSTOMER AGREES THAT IF CUSTOMER WANTS TO RESOLVE A DISPUTE WITH TOKA LOYALTY, CUSTOMER MUST SEND AN INITIAL NOTICE OF DISPUTE WITHIN ONE (1) YEAR AFTER THE EVENT THAT GAVE RISE TO THE DISPUTE. OTHERWISE, CUSTOMER’S DISPUTE WILL BE PERMANENTLY BARRED.
Following receipt of the Initial Notice of Dispute, the parties shall consult and negotiate with each other in good faith and, recognizing their mutual interest, attempt to reach a just and equitable solution of the Dispute that is satisfactory to both parties ("Direct Dispute Resolution"). If the parties are unable to reach a resolution of the Dispute through Direct Dispute Resolution after at least thirty (30) days of the receipt of the Initial Notice of Dispute, then the Dispute shall subsequently be resolved either through arbitration, if agreed to by the parties, or in court.
b) Choice of Law and Jurisdiction. CUSTOMER AGREES TO SUBMIT AND CONSENT TO THE PERSONAL AND EXCLUSIVE JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE STATE AND FEDERAL COURTS LOCATED WITHIN SACRAMENTO COUNTY, CALIFORNIA. IN ANY DISPUTE, CALIFORNIA LAW SHALL APPLY.
c) Construction and Joinder. THIS AGREEMENT MUST BE CONSTRUED AS IF IT WAS JOINTLY WRITTEN BY BOTH PARTIES. BOTH CUSTOMER AND TOKA LOYALTY AGREE THAT EACH MAY BRING OR PARTICIPATE IN CLAIMS AGAINST THE OTHER ONLY IN THEIR RESPECTIVE INDIVIDUAL CAPACITIES, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS. NO ARBITRATION OR CLAIM UNDER THIS AGREEMENT SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SERVICES, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. IN THE EVENT OF ANY DISPUTE CONCERNING THE VALIDITY OR ENFORCEABILITY OF THIS PROVISION, SUCH CLAIM MUST BE ADJUDICATED BY A COURT AND NOT BY AN ARBITRATOR.
d) Injunctive Relief. Notwithstanding the above provisions, Toka Loyalty may apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
15.4. Notice. Any notice or communication required or permitted under this Agreement will be in writing to the parties at the addresses set forth on the Order Form or at such other address as may be given in writing by either party to the other in accordance with this Section and will be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.
15.5. Amendments; Waivers. Except as otherwise provided herein, no supplement, modification, or amendment of this Agreement will be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Client will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
15.6. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Client acknowledges that the Services are on-line, subscription-based products, and that in order to provide improved customer experience Toka Loyalty may make changes to the Services, and Toka Loyalty will update the applicable Documentation accordingly.
15.7. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
15.8. Subcontractors . Toka Loyalty may use the services of subcontractors and permit them to exercise the rights granted to Toka Loyalty in order to provide the Services under this Agreement, provided that Toka Loyalty remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement and (ii) for the overall performance of the Services as required under this Agreement.
15.9. Subpoenas. Nothing in this Agreement prevents Toka Loyalty from disclosing Client Data to the extent required by law, subpoenas, or court orders, but Toka Loyalty will use commercially reasonable efforts to notify Client where permitted to do so.
15.10. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party's behalf without the other party's prior written consent.
15.11. Export Control. In its use of the Services, Client agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Client represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) 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, (ii) Client will not (and will not permit any of its users to) access or use the Services in violation of any U.S. export embargo, prohibition or restriction, and (iii) Client will not submit to the Services any information that is controlled under the U.S. International Traffic in Arms Regulations
15.12. Government End-Users. Elements of the Services are commercial computer software. If the user or licensee of the Services is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. All Services were developed fully at private expense. All other use is prohibited
15.13. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will be considered one and the same agreement.