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Tablelead, Inc. - Terms and Conditions

These Terms and Conditions govern all acquisition and use of Services from Tablelead, Inc., (“Company”) by the entity entering into an Order Form (such entity, “Client”).
1.	Definitions
1.1.	“Client Content” means any data, information or material that Client delivers, or causes to be delivered, to Company, which may include Consumer Data.
1.2.	“Client Account” means client-specific access granted to view Client specific information prepared by Company.
1.3.	“Company Materials” means all software, templates, Documentation, third party-sourced data, and other intellectual property (but not Client Content) used by Company to provide the Services.
1.4.	“Consumer” means an individual who consumes at Client’s establishments.
1.5.	“Consumer base” means all identifiable consumers within Client’s establishment.
1.6.	“Consumer Data” means the personal information provided by Consumers in commercial transactions with Client.
1.7.	“Consumer Marketing Campaign” means a campaign conducted by Company to stimulate Selected Networks to consume at Client’s establishment. The effect of each Consumer Marketing Campaigns is measured over a 3 (three) month period from the time each campaign is launched.
1.8.	“Consumer Networks” means groups of connected consumers known to the establishment.
1.9.	“Documentation” means any written specifications and user instructions provided by Company regarding the Services.
1.10.	“Fixed Charges” means monthly recurring charges associated with Subscription Services.
1.11.	“Networks” means groups of connected consumers known to the establishment.
1.12.	“New Consumers” means new consumers consuming with Selected Consumers responding to Consumer Marketing Campaign
1.13.	“Non-selected Networks” means groups of connected consumers which have not been selected for Consumer Marketing Campaigns.
1.14.	“Order Form” means a document signed by both Client and Company that specifies Services to be provided or made available to Client by Company.
1.15.	“Professional Services” means Services that Company provides to Client, that are not Subscription Services. Professional Services may be offered
(a) as part of a defined package and subject to recurring billing; or (b) on an ad hoc basis and billed per the relevant Order Form on which they are ordered.
1.16.	“Selected Consumers” means specific members of Selected Networks, and which are selected by Company to influence their networks and New Consumers to consume at the establishment.
1.17.	“Services” means all services provided by Company to Client, including installation and setup services, Subscription Services and Professional Services.
1.18.	“Subscription” means Client receiving access to one or more Services for a defined period, as specified on an Order Form.
1.19.	“Subscription Services” means services that Company makes available to Client as part of a Subscription.
1.20.	“Term” means the period during which an Order Form is in effect, as specified in the Order Form, subject to renewal or termination as specified below.
1.21.	“Value-Added Content” means the analytical and historical information regarding Consumers or Client that is developed or collected by Company in connection with the Services (such as consumer networks, effectiveness of offers, and offer redemption rates), but which is not Consumer Data.
1.22.	“Variable Charges” means charges that are calculated based on the results of Company’s Consumer Marketing Campaigns in accordance with the Order Form.
2.	Legal Compliance.
Both Client and Company will comply with all applicable federal, state and local laws, rules, and regulations (including common carrier communication tariffs)      in their performance or exercise of their rights hereunder. For clarity, it is understood  that  Client  is  responsible for  ensuring  that  its  use  of  the  Services complies with applicable laws (including those of jurisdictions outside the United States, if Client accesses or uses the Services outside the United States).
3.	Payment.
All charges will be due as specified in the applicable Order Form. Company’s obligations to Client are conditioned on Client paying Company timely and in full. Subscription fees are charged for access to the relevant Services, not actual use. Unused access does  not carry over to any period after the period in which it accrued. All payments will be made as specified in the corresponding Order Form.
3.1.	Fixed Charges
Fixed charges shall be paid monthly on the anniversary of the first Consumer Marketing Campaign without an invoice from Company.
3.2.	Variable Charges
Variable Charges are determined at the monthly anniversary of the delivery of the first list of Selected Consumers by multiplying the variable fee percentage specified on the order form by the dollar amount of consumption, excluding taxes and tips, of those Selected Consumers and New Consumers over the previous 30 days. Variable Charges shall be applied to consumption of Selected Consumers and New Consumers for a period of 90 days following each Consumer Marketing Campaign targeting those Selected Consumers.
Charges shall be paid upon Client’s receipt of an invoice from Company. In the event  of  termination  of  the  agreement,  Client  shall  continue  to  pay  the Variable Charges to Company until the effect of the Consumer Marketing Campaigns expires 3 (three) months after the launch of each campaign.
3.3.	Late Charges; Suspension of Services. Company may assess a late payment fee of 1½% per month on balances that Client does not pay on time (including as a result of a denied credit or returned payment). Company may immediately suspend its performance hereunder if any payment owed to it by Client remains unpaid more than ten (10) business days after delivery of a past due notice to Client. Company will not impose interest or suspension if the fees in question are the subject of good faith dispute of which Client has notified Company and that Client is diligently working to resolve.
3.4.	Taxes. Client will pay, or reimburse Company for, any taxes or similar liabilities levied on the Services or payments made to Company by Client, excluding taxes or similar liabilities chargeable against Company’s income or gross receipts.
4.	Renewal; Termination.
4.1.	Renewal. Subscriptions auto-renew for successive one-year renewal Terms at the end of the then-current Term unless (a) otherwise specified in the relevant Order Form; or (b) either party notifies the other of non-renewal at least 30 days in advance of the expiration of the then-current Term.
4.2.	Termination. Either party may immediately terminate any or all Order Forms, and/or Subscriptions by written notice to the other party.
4.3.	Return of Materials. After termination or expiration of this Agreement, and upon Company’s receipt of all amounts owed to it by Client, Company will deliver or make available to Client a copy of the Value-Added Content. If Client fails to pay all undisputed amounts owed to Company within sixty (60) days after termination or expiration, and any disputed amounts within fifteen (15) days after the final resolution of such dispute, Client will no longer have any rights to the Value-Added Content and Company may remove from its systems and archive or destroy any Value-Added Content. Except as provided above, each party will, on termination or expiration, immediately return to the other party all papers, materials and other properties of the other party.
5.	Warranties. Company shall use reasonable efforts consistent with prevailing industry standards to maintain the  Services  in  a  manner which  minimizes errors and interruptions in the Services and shall perform the Implementation  Services  in  a  professional  and  workmanlike  manner.  Services  may  be  temporarily unavailable for scheduled  maintenance  or for unscheduled emergency maintenance,  either by Company or by third-party providers,  or because of  other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice  in  writing  or  by  e-mail  of  any  scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALLWARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
6.	Limitation of Liability. EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, (A) NEITHER PARTY NOR ITS RESPECTIVE LICENSORS OR SUPPLIERS (INCLUDING SERVICE PROVIDERS) WILL BE LIABLE FOR ANY DAMAGES HEREUNDER OTHER THAN DIRECT DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE FAILURE OF ESSENTIAL PURPOSE OF ANY EXCLUSIVE OR LIMITED REMEDY; AND (B) IN NO EVENT WILL THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY NOR ITS RESPECTIVE LICENSORS OR SUPPLIERS (INCLUDING SERVICE PROVIDERS) EXCEED THE FEES THAT CLIENT PAID OR OWED TO Company DURING THE THREE (3) MONTH PERIOD PRECEDING THE CIRCUMSTANCES GIVING RISE TO THE APPLICABLE CAUSE OF ACTION.
7.	Intellectual Property
7.1.	Retained Ownership. Company Materials are and will remain Company’s property. Client Content and Consumer Data are and will remain Client’s property. Company shall have the perpetual, non-exclusive, royalty-free right and license to use the Client Content and Consumer Data in connection with its business and this Agreement, subject to any applicable confidentiality restrictions herein and provided that no use by Company of such Client Content or Consumer Data, other than in the performance of Services hereunder, will associate or identify Client with such use by Company of Client Content or Consumer Data, except as required by law. Any restrictions herein on Consumer Data will not apply to information Company obtains about a Consumer in connection with its delivery of services to another client or through means unrelated to the services provided to Client hereunder.
7.2.	Publicity and Feedback. By using the Service, you acknowledge and agree that Company may display your business name  or trademark  on  a customer list, whether on the Service or otherwise. You further acknowledge and agree that any ideas, suggestions, feedback, artwork, or other information   or works (“Feedback”) that you make or develop in conjunction with your use of the Service or otherwise submit to Company related to its business or the Service in any form, shall become the property of Company. You irrevocably assign to Company all right, title, and interest in and to Feedback. Company has no obligation to review any Feedback but may freely use, publicly disclose and/or redistribute any such Feedback in whole or in part, in any form for its commercial benefit, to improve the Service or for any other purpose and shall owe you no compensation of any kind (including, but not limited to, royalties) for any such Feedback.
7.3.	Value-Added Content. Upon payment in full of all associated fees owed to Company, Company hereby grants to Client a perpetual, non-exclusive, royalty-free, transferable license to use the Value-Added Content in any way, other than the Company Materials that may be incorporated into the Value- Added Content. If Company incorporates the Company Materials into the Value-Added Content, Company grants to Client a perpetual, non-exclusive, royalty-free, non-transferable license to use those Company Materials as incorporated into such Value-Added Content as delivered to Client.
8.	Confidentiality; Proprietary Rights
8.1.	Confidential Information. A party (“Owner”) may give to the other party (“Recipient”) access to its confidential information, directly or indirectly, in writing, by inspection, or orally. All information that the parties exchange will be considered “Confidential Information” unless Owner tells Recipient that the information is not Confidential Information, or the information otherwise fits into one of the following exceptions. Confidential Information does not include any information which (i) is publicly known other than by Recipient’s action or inaction; (ii) Recipient already possesses, or receives, without restriction; or (iii) Recipient can show it independently developed. By disclosing Confidential Information, Owner does not grant Recipient any express or implied right to the Confidential Information.
8.2.	Disclosure and Use. For so long as Owner’s Confidential Information remains Confidential Information, the Recipient will (i) not disclose or use any of the Confidential Information other than as authorized hereunder; (ii) protect the Confidential Information, using the same measures that Recipient takes to protect its own Confidential Information; and (iii) notify Owner immediately if Recipient discovers any unauthorized disclosure of such Confidential Information.
8.3.	Obligations on Termination. On termination of the applicable Order Forms, each party will destroy all copies of the other party’s Confidential Information and certify that destruction, except each party may retain copies (i) as required for compliance and enforcement purposes; (ii) contained in  system backups, archives, or otherwise relatively inaccessible; and (iii) as otherwise authorized herein, provided that any such retained copies remain subject to these protections in perpetuity, even after termination or expiration of these Terms and Conditions or any Order Form.
8.4.	Data Security. Company will maintain reasonable administrative, physical, and technical safeguards for protection of Consumer Data  within its  control. Client is responsible for the security of its passwords, usernames, and other methods Client uses to access the Services (collectively, “Credentials”), and is responsible for all use of the Credentials.
8.5.	Unassociated Data. Company is authorized to use aggregated and anonymized Consumer Data, data contained in the Client Content that does not contain personal information or otherwise identify Client or a Consumer, and results from the use of its Services (“Unassociated Data”) for any purpose, including benchmarking and statistical analysis, and may share Unassociated Data with third parties for their use. Company will not disclose any Unassociated Data or information that could identify the Client or a Consumer as being associated with such Unassociated Data.
9.	General. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent.   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, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the Commonwealth of Virginia without regard to its conflict of laws provisions. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request.
10.	Product-specific Provisions.
10.1.	POS Integration. Company supports only those specific “point of sale” (POS) systems specified (including the version(s)) on the then-current Documentation. Company does not bear responsibility for any changes in technology by the POS vendor, or the inability to retrieve data from the POS system if there are changes to the technology of the POS system.
10.2.	Analytics & Consulting Services. Company will use it commercially reasonable best efforts to achieve the desired results of the Subscription and Professional Services, but cannot guarantee that any particular results will be achieved.