During the length of the Merchant Agreement, ImIn Marketer (ImIn) will provide the ImIn Programs. In the event of any inconsistency among terms and conditions of the Merchant Agreement and these Terms and Conditions (“Agreement”), the order of control shall be: (i) Terms & Conditions, (ii) Merchant Agreement, and (iii) any other exhibits, addenda or attachments to the Terms & Conditions including any links contained in the Merchant Agreement or these Terms and Conditions, which are incorporated by reference herein. Any capitalized terms that are not defined in these Terms and Conditions have the meanings ascribed to them in the Merchant Agreement.
2. Intellectual Property Rights.
(i) ImIn owns all right, title and interest in and to any data provided to ImIn by your customer or an end user to ImIn in connection with the ImIn developed mobile application and Programs (“Customer Data”). (ii) ImIn owns all right, title and interest in and to the ImIn Programs including, without limitation, any intellectual property rights and any improvements, modifications, enhancements or refinements thereto. Except as set forth in the Agreement, all rights not expressly granted to you are reserved. You agree not to decipher, decompile, disassemble, reconstruct, translate, reverse engineer, or discover any of the ImIn Programs, intellectual property or ideas, algorithms, file formats, programming, or interoperability interfaces underlying or such intellectual property.
You: (i) will use the ImIn Programs solely for your internal business purposes, and (ii) will not, for itself, any affiliate of you or any third party (a) sell, rent, lease, license or sublicense, assign, distribute, or transfer the ImIn Programs; (b) modify, change, alter, create derivative works of, decipher, decompile, disassemble, reconstruct, translate, reverse engineer, or discover any source code of the underlying ideas, algorithms, file formats, programming, or interoperability interfaces of the ImIn Programs; (c) copy any tangible versions of the ImIn Programs; or (d) remove from any of the ImIn Programs any language or designation indicating the confidential nature thereof or the proprietary rights of ImIn. In addition, you will not export, re-export or permit any third party to export or re-export, directly or indirectly, the ImIn Programs where such export or re-export is prohibited by applicable law without appropriate licenses and clearances.
4. Fees; Pricing and Payment Terms; Taxes.
(i) There will be no refunds or credits for setup fees, partial months of service, upgrade/downgrade refunds, or refunds for months unused with an open account. (ii) ImIn’s current fees for the ImIn Programs and its services are set forth in the Merchant Agreement. ImIn reserves the right to amend the fees payable for the ImIn Programs at any time upon thirty (30) days prior notice to you; provided, however, that such amendment to the fees will not be applicable until the beginning of the next Subscription Period. (iii) You will be responsible for any sales, use, value-added or import taxes, customs duties or similar taxes assessed in accordance with applicable law with respect to the provision of the ImIn Programs. (iiii) Notwithstanding anything herein to the contrary, ImIn, in its sole discretion, may suspend or terminate the Agreement and corresponding access and right to use the ImIn Programs, at any time, upon notice to you, if you have not paid all amounts and such amounts remain outstanding as of the date of such termination. You agree to pay reasonable attorneys’ fees and court costs incurred by ImIn to collect any unpaid amounts owed by you.
5. Term, Termination; Survival.
The Agreement will remain in full force specified in the Merchant Agreement. Either party may choose not to renew a Subscription Period if such party notifies the other party in writing no less than thirty (30) days prior to the start of the subsequent Subscription Period. Either party may terminate the Agreement in the event that the other party materially defaults in performing any obligation under the Agreement and such default continues for a period of thirty (30) days following written notice of default. Each party shall have the right to terminate the Agreement upon written notice to the other party: (i) upon the institution of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of debts of the other party that is not otherwise dismissed within sixty (60) days of such institution; (ii) upon the making of an assignment for the benefit of creditors by the other party; or (iii) upon the dissolution of the other party. (iv) if, within 30 days of the Installation Date, You desire to terminate imIn’s services, you agree to provide written notice within 30 days of the Installation Date. Within 30 days of ImIn’s receipt of that notice, ImIn will refund You any money collected for the initial monthly subscription fee in the same manner in which the initial fee was paid (v) if, after thirty (30) days from the Installation Date and prior to the subsequent Subscription Period, You desire to terminate ImIn’s services, You agree to pay an early cancellation fee equal to three (3) months of your monthly subscription fee via the credit card or ACH on file. Any provision of the Agreement which contemplates performance or observance subsequent to any termination or expiration of the Agreement shall survive any termination or expiration of the Agreement and continue in full force and effect.
6. Representations and Warranties; Disclaimer.
(i) ImIn warrants that ImIn has the authority to enter into this Agreement. (ii) You represent and warrant to ImIn that: (a) you have the authority to enter into this Agreement; and (b) you will only use the ImIn Programs for lawful purposes and will not violate any law of any country or the intellectual property rights of any third party. (iii) EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 6, EACH PARTY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF QUALITY, ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY AGREE THAT THE USE OF IMIN PROGRAMS OR SERVICES AND THE INTERNET IS AT YOUR SOLE RISK. IMIN PROGRAMS AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
7. Confidential Information
Any information that a receiving party knows or has reason to know (either because such information is marked or otherwise identified by the disclosing party orally or in writing as confidential or proprietary, has commercial value, or because it is not generally known in the relevant trade or industry) is “Confidential Information” of the disclosing party and will remain the sole property of the disclosing party. Such Confidential Information includes but is not limited to data, information (including personally identifiable information), ideas, materials, specifications, procedures, schedules, software, technical processes and formulas, source code, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, usage rates, advertising relationships, projections, marketing data and other similar information provided by a party. For avoidance of doubt, Customer Data shall be deemed Confidential Information of ImIn. Each party agrees that it will not disclose, use, modify, copy, reproduce or otherwise divulge such Confidential Information to any third party without the prior written approval of the disclosing party except that the receiving party shall have the right to disclose such Confidential Information to the extent required by applicable law or to the directors, officers or employees of the receiving party who have a need to know such Confidential Information in order to perform its obligations under the Agreement and to the extent such directors, officers or employees are subject to obligations of confidentiality and non-disclosure that are substantially similar to the obligations set forth in the Agreement. The prohibitions contained in this Section will not apply to information (i) already lawfully known to the receiving party prior to such disclosure by the disclosing party; (ii) independently developed by the receiving party without access to or use of the disclosing party’s Confidential Information; (iii) disclosed in published materials; (iv) generally known to the public; or (v) lawfully obtained from any third party. In addition, a party will not be considered to have breached its obligations under the Agreement to the extent Confidential Information is required to be disclosed by any governmental authority, provided that, to the extent legally practicable, the receiving party advises the disclosing party prior to making such disclosure in order that the disclosing party may object to such disclosure, take action to ensure confidential treatment of the Confidential Information, or take such other action as it considers appropriate to protect the Confidential Information.
8. Dispute Resolution; Governing Law.
To the extent any disputes arise under the Agreement or otherwise between the parties, the parties will first attempt in good faith to resolve their dispute informally. This Agreement is governed by the State of Illinois and you expressly agree to the exclusive jurisdiction for any claim or dispute with ImIn in the federal and state courts within the jurisdiction of the United States District Court for the Northern District of Illinois. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the Agreement.
You will defend, indemnify, and hold ImIn and its affiliates and their respective directors, officers, employees, agents and representatives harmless from and against any third party suit, proceeding, assertion against any damages, judgments, liability, costs and expenses (including without limitation any reasonable attorneys’ fees) incurred arising from your material breach of this Agreement, your unauthorized use or misuse of the ImIn Programs or any unauthorized combination of the ImIn software, products, data or other materials not specified or provided by ImIn.
10. Limitation of Liability
ImIn’s aggregate liability for all claims (including claims for indemnification of third party damages) arising out of the Agreement, whether in contract, tort or otherwise, will not exceed the amount of fees paid by you to ImIn under the Agreement during the twelve (12) months preceding the date on which the claim occurred. To the maximum extent permitted by applicable law, in no event will ImIn be liable for any loss of business profits, business interruption, loss of data or any special, indirect, exemplary, incidental or consequential damages arising from or in relation to the Agreement or the use of the Services, however caused and regardless of theory of liability.
Except where explicitly provided otherwise herein, any notice required or permitted hereunder will be delivered to the contact person listed on the Order Information as follows (with notice deemed given as indicated): (i) by personal delivery when delivered personally; (ii) by established overnight courier upon written verification of receipt; (iii) by facsimile transmission when receipt is confirmed orally; (iv) by certified or registered mail, return receipt requested, upon verification of receipt; or (v) by electronic delivery when receipt is confirmed orally.
You may not, without the prior written consent of ImIn, assign the Agreement, in whole or in part, either voluntarily or by operation of law, and any attempt to do so will be a material default of the Agreement and will be void. The Agreement will be binding upon and will inure to the benefit of the respective parties hereto, their respective successors in interest, legal representatives, heirs and assigns.
13. No Third Party Beneficiaries.
The Agreement is solely for the benefit of the parties and their successors and permitted assigns, and does not confer any rights or remedies on any other person or entity.
14. Amendment; Waiver.
This Agreement may be changed only by written agreement signed by both ImIn and you. The failure of either party to exercise or enforce any of its rights under the Agreement will not act as a waiver of subsequent breaches and the waiver of any breach will not act as a waiver of subsequent breaches.
If any provision of the Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be enforced to the maximum extent permissible under applicable law and the other provisions of the Agreement will remain in full force and effect.
16. Force Majeure.
If either party is prevented from performing any of its obligations under the Agreement due to any cause beyond the party’s reasonable control including, without limitation, an act of God, fire, flood, explosion, terrorism, war, embargo, government regulation, civil or military authority, acts or omissions of carriers, transmitters, providers, or acts of vandals, or hackers. The time for that party’s performance will be extended for the period of the delay or failure to perform due to such occurrence, except that you will not be excused from the payment of any sums of money owed by you to ImIn provided prior to the force majeure event.
17. Independent Contractor.
The Agreement will not be construed as creating or constituting a partnership, joint venture, or agency relationship between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
18. Compliance with Laws.
Each party will comply with all applicable laws, regulations, and ordinances relating to their performance hereunder.
19. Entire Agreement.
The Agreement will constitute the entire agreement between ImIn and you with respect to the subject matter hereof and all prior oral or written agreements, representations or statements with respect to such subject matter are superceded hereby.
20. 100% Satisfaction Guarantee Terms
If for whatever reason you are unsatisfied with your mobile application within the first month of service, ImIn guarantees to refund the first month of service with no questions asked. ImIn is backed by a 100% satisfaction guarantee. This guarantee does not apply to months after a full month of service has passed or the setup fee and only applies to the initial month of service with ImIn.