Terms & Conditions

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Terms and Conditions

1. Access and Use of the Platform

(a) Subject to these Terms and Conditions, and the applicable Order Form, Jebbit hereby grants Customer the limited license to access the Platform solely to implement Customer’s Experiences during the Term. Customer shall not provide or resell services to any third party through the Platform. Customer shall not, directly or indirectly, reverse engineer, manipulate, alter, copy, modify or interfere with the operation of the Platform. In addition, Customer shall promptly notify Jebbit if Customer suspects that any third party may be tampering with, abusing or manipulating the Platform.  

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(b) Jebbit shall provide Customer with access to Jebbit’s customer web interface available via the Platform (the “Customer Portal”) using login and password credentials assigned to Customer by Jebbit (“Login Credentials”).  Customer may utilize the Customer Portal to design, deploy, and manage its campaigns directed to consumers (each an “Experience”) and to obtain information regarding the progress and results of its Experience(s).  

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(c) Customer shall protect the security and confidentiality of its Login Credentials and Customer acknowledges and agrees that all actions performed through the Customer Portal with use of the Customer’s Login Credentials are Customer’s sole responsibility, and Jebbit shall have no liability for unauthorized use of Customer’s Login Credentials by third parties. 

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2. Customer Content:

Customer hereby grants Jebbit a non-exclusive, royalty-free, worldwide license to use, copy, distribute, and display all trademarks, logos, and works of authorship provided by Customer (“Customer Content”) in connection with Jebbit’s provision of access to the Platform, the Experiences, or any Additional Services.  

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3. Data Collection and Use:

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(a) Customer, and not Jebbit, is responsible for determining the nature and type of information collected from End Users within an Experience. At the conclusion of each Experience, Customer shall have the ability to import from the Platform all information about End Users derived from an Experience (“End User Data”). Customer shall own all End User Data. Customer hereby grants to Jebbit a worldwide, non-exclusive, perpetual, royalty-free license to (i) process the End User Data for the purpose of executing Experiences; (ii) utilize the End User Data to improve its products and services, and (iii) disclose the End User Data to third parties in aggregate and anonymized form. 

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(b) Customer acknowledges and agrees that all Experiences shall be subject to the terms set forth in Customer’s privacy policy (“Customer’s Privacy Policy”), which must: (i) provide notice to End Users that End User Data collected through Experiences may be shared with third parties, and (ii) be at all times accessible to End Users through a prominent link within the Experience.

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4. Additional Services:

From time to time during the Term, Customer may request that Jebbit perform services such as consulting, design, or configuration in connection with Customer’s Experience(s) (“Additional Services”).  The scope and Fees for such Additional Services shall be mutually agreed to by the parties and set forth in an Order Form. The results and proceeds of any Additional Services (“Results and Proceeds”) will remain owned by Jebbit, and Jebbit hereby grants Customer a non-exclusive, royalty-free, worldwide license to use, copy, distribute, display and/or modify the Results and Proceeds solely in connection with the Experiences, on the Platform, during the Term.

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5. Fees and Payments:

(a) The Platform is made available to Customer on a subscription basis, upon advance payment. The terms of Customer’s subscription, including its length, the fees payable to Jebbit (“Fees”), and the payment terms therefor, shall be set forth in an Order Form. Unless otherwise set forth in an Order Form, the Fees will increase annually by an amount no greater than 5%.

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(b) If Customer fails to pay the Fees when due, Jebbit shall be entitled to suspend Jebbit’s provision of Services, or Customer’s access to the Platform, until such Fees have been paid.  In addition, Jebbit may charge a late fee on all past due amounts at the rate of 1.5% per month, or the maximum rate permitted by law.

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(c) All Fees are exclusive of any sales, use, excise, value added tax, or any other tax or amount (collectively “Taxes”). In the event that Jebbit is legally obligated to charge Customer for any applicable Taxes, they will be itemized on the applicable invoice.

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6. Publicity:

Subject to its confidentiality obligations hereunder, Jebbit may disclose that Customer is a customer of Jebbit in any format, whether online or offline, and Jebbit may elect to develop a case study based on the successful results of any Experiences hereunder, which it may share with the public and potential and current customers. Customer hereby grants Jebbit the right to display Customer’s name and logo, in connection therewith.

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7. Representations and Warranties; Disclaimers:

(a) Each party represents and warrants to the other party that: (i) it has the power and authority to enter into and perform its obligations under this Agreement; (ii) it currently has no restrictions that would impair its ability to perform its obligations under this Agreement; and (iii) it shall comply with all applicable federal, state and local laws and regulations. 

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(b) Customer further represents and warrants to Jebbit that (i) excluding any material provided by Jebbit, no part of Customer’s Experiences, including any Customer Content, shall infringe on the intellectual property or other proprietary rights of any third party, nor violate any applicable law or regulation; and (ii) End User Data shall only be collected and used in accordance with all applicable laws and regulations and as provided in Customer’s Privacy Policy.

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(c) EXCEPT FOR THE FOREGOING, THE PLATFORM IS PROVIDED “AS IS”, AND JEBBIT MAKES NO WARRANTY OF ANY KIND AND HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.  JEBBIT MAKES NO WARRANTY OR GUARANTY OF ANY KIND OF CONTINUOUS OR UNINTERRUPTED USE OF THE PLATFORM, OR RESULTS OF ANY CUSTOMER EXPERIENCES.

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8. Indemnification:

(a) Jebbit shall defend Customer and its officers, directors and affiliates (collectively, “Customer Indemnitees”) from and against any claim, demand, suit, or proceeding made or brought against Customer by a third party (“Claim”) alleging that the Platform infringes that third party’s U.S. intellectual property; and Jebbit shall indemnify the Customer Indemnitees from and against any damages finally awarded against, and reasonable attorney's fees incurred by, Customer in connection with any such Claim that are specifically attributable to such Claim, or those costs and damages agreed to in a monetary settlement of such Claim (“Liabilities”).  

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(a) Customer shall defend Jebbit and its officers, directors and affiliates (collectively, “Jebbit Indemnitees”) from and against any Claim arising from (i) Customer’s use of the Platform, including without limitation, the conduct of any Experiences, (ii) the Customer Content , and (iii) Customer’s collection and use of End User Data; and Customer shall indemnify the Jebbit Indemnitees for any Liabilities.  

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(c) The party seeking indemnification hereunder (the “IndemnifiedParty”) shall promptly notify the other party (“Indemnifying Party”) of any loss, claim, damage, liability or action in respect of which the Indemnified Party intends to claim indemnification hereunder, and no later than thirty (30) days after the Indemnified Party receives notice of such (including a copy of any claim or lawsuit); provided, however, that failure to provide such notice within such timeframe shall not relieve the Indemnifying Party of its indemnification obligations unless the Indemnifying Party was materially prejudiced by such late notice. The Indemnifying Party shall be entitled, at its option, to exercise sole and exclusive control of the defense and settlement of any claim for which it is obligated to provide indemnification hereunder.  The Indemnified Party shall reasonably cooperate in the investigation, defense and settlement of any claim for which indemnification is sought hereunder.  An Indemnified Party shall have the right to retain separate legal counsel at its own expense.

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9. Confidentiality:

(a) Each party agrees that all business, technical and financial information it obtains from the other party that may reasonably be expected by the disclosing party to be considered confidential (“Confidential Information”) is the confidential property of the disclosing party.  Except as expressly allowed herein or as required by law, regulation or court order, the receiving party shall hold in confidence and not use or disclose any Confidential Information of the disclosing party. Each party shall be deemed to have met its obligations hereunder if it treats the other party’s Confidential Information with the same degree of confidentiality it affords its own sensitive business information, but no less than a reasonable standard of care.  

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(b) The confidentiality obligations herein shall not apply to information the receiving party can document: (i) is or has become readily publicly available without restriction through no fault of the receiving party or its employees or agents;  (ii) is received without restriction from a third party lawfully in possession of such information; (iii) was rightfully in the possession of the receiving party without restriction prior to its disclosure by the other party; or (iv) was independently developed by employees or consultants of the receiving party without access to such Confidential Information.  

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(c) To the extent the receiving party is required to disclose Confidential Information of the disclosing party by a court of competent jurisdiction, by any governmental agency having supervisory authority over the business of the disclosing party, or by any administrative body or legislative body (including a committee thereof) with jurisdiction to order the receiving party to divulge, disclose or make accessible such information; the receiving party shall have the right to disclose such Confidential Information; provided that, the receiving party shall (i) promptly notify the disclosing party of such order (to the extent permitted under applicable law or regulation), (ii) at the written request of the disclosing party, cooperate with the disclosing party to contest such order at the sole expense of the disclosing party, (iii) at the written request of the disclosing party, seek to obtain at the sole expense of the disclosing party such confidential treatment as may be available under applicable laws for any information disclosed under such order; and (iv) disclose only such Confidential Information as is reasonably required to be disclosed.

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10. Limited Liability:

EXCEPT FOR A PARTY’S INDEMNIFICATION OR CONFIDENTIALITY OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL THEORY FOR (I) ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (II) ANY DIRECT DAMAGES IN AN AMOUNT IN EXCESS OF THE TOTAL FEES PAID BY CUSTOMER PURSUANT TO THE ORDER FORM UNDER WHICH THE CAUSE OF ACTION AROSE.

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11. Term and Termination:

(a) The initial term of the Agreement shall be from the Subscription Start Date set forth in the Order Form through the expiration date set forth in the Order Form  (“Initial Term”).

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(b) Unless otherwise set forth in the applicable Order Form, upon expiration of the Initial Term, the Agreement shall automatically renew for additional periods equal to the Initial Term, unless Customer provides written notice to Jebbit of its intent not to renew no later than 60 days prior to the expiration of the then-current Term (each a “Renewal Term”). The Initial Term and all Renewal Terms shall be deemed the “Term”.

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(c) In the event of a material breach of this Agreement by a party, the non-breaching party may terminate this Agreement by delivery of written notice of termination to the breaching party; provided, however, that the breaching party shall have thirty (30) days from receipt of notice of the breach from the non-breaching party to cure such breach.

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12. General Terms:

(a) All legal notices in connection with this Agreement shall be deemed given when personally delivered, upon delivery via overnight courier (e.g., FedEx), or certified or registered, return receipt requested, and addressed as set forth above, or such other address as such party last provided to the other by written notice.

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(b) This Agreement and the rights, obligations and licenses herein, shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns.  Neither party may assign this Agreement in whole or part without the prior written consent of the other party except that either party may assign this Agreement without consent in connection with a merger, reorganization or sale of all or substantially all of a party’s assets or outstanding capital stock.  

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(c) This Agreement, including the Terms and Conditions, all Order Forms, and all exhibits or appendices, contains the entire understanding of the parties regarding its subject matter and supersedes any and all other agreements and understandings, whether oral or written, with respect to the subject matters covered herein.  No changes or modifications or waivers to this Agreement shall be valid unless evidenced in writing and signed by both parties.  

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(d) If any portion of this Agreement is held to be illegal or unenforceable by a court of competent jurisdiction, that portion shall be restated, eliminated or limited to the minimum extent necessary so that this Agreement shall reflect as nearly as possible the original intention of the parties and the remainder of this Agreement shall remain in full force and effect.  

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(e) This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without regard to the conflicts of laws provisions thereof.  

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(f) Any dispute, controversy or claim arising out of or relating to this Agreement, shall be finally settled by binding arbitration conducted in Boston, Massachusetts under the commercial arbitration rules of the American Arbitration Association (“AAA”). The arbitration shall be conducted by a single arbitrator jointly appointed by the parties; provided, however, that if they cannot agree within thirty (30) days after the initiation of the arbitration, then the arbitrator shall be appointed by the AAA.