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Terms of Service Agreement

STANDARD MOBILE CMS AGREEMENT | WHITE LABEL MOBILE CMS AGREEMENT

By using any brickandmobile.com web site, mobile website, web platform, product, marketing material, sales training course, subscription, and/or service (“Service”), of brick&mobile, a division of Axiom Marketing Inc. (“brick&mobile”), you are agreeing to be bound by the following terms and conditions (“Terms of Service”).  These Terms of Service shall serve as an agreement (the “Agreement”) between brick&mobile and the Mobile Reseller (“Customer” or “You” or “Your”), hereafter collectively referred to as the parties (“Parties” or “Party”).

BY ACCEPTING THIS AGREEMENT, EITHER BY COMPLETING THE ONLINE APPLICATION PROCESS BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY USING A SERVICE THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

brick&mobile reserves the right to update and change this Agreement from time to time without notice. You can review the most current version of this Agreement any time at: http://www.brickandmobile.com/terms/.

Service Terms

  • You must be 18 years or older to use this Service.
  • You must provide Your legal full name, a valid email address, payment details, and any other information requested in order to complete the registration process.
  • You are responsible for all trade-marks, logos, design, media, text, graphics, animations, audio components, video components, photos or any other information (hereinafter collectively referred to as “Content”) posted and activity that occurs under Your Service (even when Content is posted by others who have access to Your Service).
  • You may not use the Service for any illegal or unauthorized purpose. You must not, in the use of the Service, violate any laws in Your jurisdiction (including but not limited to copyright laws).
  • You must be a human. Service registration or access by “bots” or other automated methods are not permitted.
Violation of any of the terms will result in the termination of Your Service. While brick&mobile prohibits such conduct and Content on the Service, You understand and agree that brick&mobile cannot be responsible for the Content posted on the Service and You nonetheless may be exposed to such materials. You agree to use the Service at Your own risk, and to hold brick&mobile harmless for any loss, misconduct, or unauthorized use of the Service.

If any unauthorized use occurs, brick&mobile may hold You or any party that You have assigned liable for any loss or damage that are a result of the breach of this Agreement.

Service and Password Security

You are responsible for maintaining the confidentiality of Your Service password, and are responsible for all activities that occur under Your Service.  You agree to immediately notify brick&mobile of any unauthorized use of Your password or Service or any other breach of security, which includes but is not limited to computer viruses, trojan horses, spyware, malware, adware, hacking, and other malicious or unwanted means expressly or impliedly prohibited by, or inconsistent with, any provision of this Agreement.

brick&mobile reserves the right to revoke access to the Service, at its sole option and discretion and without notice to You, if any misuse or foul play occurs or is suspected within the system.

brick&mobile will not be liable for any loss or damage arising from Your failure to provide us with accurate information or to keep Your password secure.

Pricing and Modifications to the Service

brick&mobile will charge You a monthly fee for the Service which will vary with the type of plan and actual Service rendered by brick&mobile.  All fees are subject to change at any time.  We will notify You in advance of any fee changes.

brick&mobile shall not be liable to You or to any third party for any modification, price change, suspension or discontinuance of the Service.

From time to time, brick&mobile may issue an update to the brick&mobile application which may add, modify, and/or remove features from the Service. These updates may be pushed out automatically with little or no notice, although brick&mobile will attempt to notify You in advance of an upcoming update, including details on what the update includes, whenever possible.

Payment Terms

A valid credit card or PayPal account is required to set up any type of Service with brick&mobile.

By using any brick&mobile’s Service, You hereby authorize brick&mobile to draw monthly automatic recurring payments from Visa, MasterCard or PayPal, covering all monthly dues and all other applicable payments to Your Service.

All subscriptions to any brick&mobile Service will renew automatically on a month-to-month basis, and monthly recurring payments, where applicable, will continue until notice of cancellation is received. All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and You shall be responsible for payment of all such taxes, levies, or duties.

brick&mobile reserves the right to revoke access to Services if Your balance is overdue or invoices are not paid in full. If for any reason You default on Your contracted payment obligations, You hereby authorize brick&mobile or its assignee to collect the outstanding monies, plus service charges and interest, in any method available to brick&mobile. You shall indemnify brick&mobile for all collection or legal fees incurred by brick&mobile in order to satisfy Your payment defaults.

Refund Policy

There will be no refunds or credits for setup fees, partial months of Service, upgrade/downgrade refunds, or refunds for months unused with any Service.

In order to treat everyone equally, no exceptions will be made.

Cancellation and Termination

You are solely responsible for canceling Your Service. You can cancel Your Service anytime by clicking on the “Billing” tab inside the Service web platform. Your brick&mobile membership will continue in effect unless and until You cancel Your membership or we terminate it. Any questions in regards to cancellations should be directed to support@brickandmobile.com. Cancellations by phone or sent to any other email address will not be accepted.

All of Your Content will be deleted from the Service upon cancellation. This Content cannot be recovered once Your Service is cancelled.

You must cancel Your membership before it renews each month in order to avoid billing for the following month’s fees. If You cancel the Service before the end of Your current paid up month, Your cancellation will take effect immediately and You will not be charged again.  You will still be able to access the Service until Your current payment cycle expires.

You may cancel this Agreement at any time after all obligatory payments have been made to brick&mobile, following which brick&mobile shall not be required to render any further Service as per the terms of this agreement.

Termination by brick&mobile

brick&mobile, at its sole discretion, has the right to suspend or terminate Your Service and refuse any and all current or future use of the Service, or any other brick&mobile Service, for any reason at any time.

Such termination of the Service will result in the deactivation or deletion of Your Service or Your access to Your Service, and the forfeiture and relinquishment of all Content in Your Service.

brick&mobile reserves the right to refuse Service to anyone for any reason at any time.

In the event of a cancellation and/or termination of Your Service, brick&mobile will not be held responsible or liable for any damages that You or Your clients incur as a result of any agreements made between You and Your clients.

Upon expiration or termination of this Agreement: (a) You shall return or, at brick&mobile’s request, destroy all confidential informationf, and (b) other than as provided herein, all rights and obligations of each Party under this Agreement, exclusive of the Service, shall survive.

Transfer of Customers Upon Dissolution

Upon dissolution brick&mobile agrees to provide all Content and necessary information, including client contact details and existing contracts, to transfer Your clients’ accounts so that they may maintain Service with brick&mobile. Upon dissolution of Your subscription, brick&mobile agrees to take over all of Your clients’ accounts and maintain them from the effective date of termination.

Hosting

brick&mobile will host Your Service with a premium Internet hosting provider. You will be granted access to Your Service from our website (http://www.brickandmobile.com), and any sub-domains associated with the particular Service. brick&mobile will make reasonable efforts to monitor the up-time of the hosting account, but does not guarantee or warrant its reliability due to various external Internet factors.

Members Area Access

Under the terms of this Agreement, all paying customers of brick&mobile will receive exclusive access to a secure members area (“Members Area”) that can be found at http://www.brickandmobile.com/members/ .

Information shared in the Members Area is copyright of brick&mobile and must be kept confidential at all times. You may not share or sell any information to business owners, package or offer this information as a bonus, add this information to membership sites, or otherwise distribute this information without written consent from brick&mobile.  The trademarks, logos, and service marks that are displayed in Members Area information are the registered and unregistered marks of their respective owners.

brick&mobile reserves the right to revoke access to the Members Area at any time if any misuse or foul play occurs, or if unauthorized file sharing or multiple-IP logins are detected in the system.

Customer Support

Customer and technical support is only available via email or our support forum. The technical support email address is support@brickandmobile.com, and more information can be found on our Support Desk (http://support.brickandmobile.com)

brick&mobile will make the best efforts to respond to all reasonable requests in a timely manner.  You understand that brick&mobile will not be held liable for any loss or misfortune that may occur from support or technical recommendations, or the time at which it may take for the support or technical issue to be addressed.

Copyright and Content Ownership

We claim no intellectual property rights over the material You provide to the Service. Your profile and materials uploaded remain Yours. However, by using the brick&mobile application to create Your mobile application, You agree to allow others to view and share Your Content.

brick&mobile does not pre-screen Content, but brick&mobile and its designee have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available via the Service.

You shall be solely responsible for securing and paying for all digital Content licenses and any other Trademark or Copyright licenses from Content owners (or their agents) required in connection for You to use in connection with the brick&mobile Service.

Free Trial

brick&mobile encourages the use of its Service through free trials, when available.  Free trials last for 30 days and are only available to first time customers of brick&mobile.  Only one free trial may be redeemed per member.  A valid credit card or PayPal is required when signing up for a free trial, but You will not be billed until the conclusion of the stated free trial expiry date.

By registering for a free trial, You authorize brick&mobile to bill You for the following month of Service at the commencement of that month.  If You cancel Your Service prior to the expiration of Your free 30 day trial, You will not be charged.  At the end of Your 30 day trial, billing will begin automatically for each month that You continue to use the Services.

Warranty

brick&mobile does not warrant that (i) the Service will meet Your specific requirements, (ii) the Service will be uninterrupted, timely, secure, or error-free, (iii) the results that may be obtained from the use of the Service will be accurate or reliable, (iv) the quality of any products, Service, information, or other material purchased or obtained by You through the Service will meet Your expectations, and (v) any errors in the Service will be corrected.

Liability

You expressly understand and agree that brick&mobile shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if brick&mobile has been advised of the possibility of such damages), resulting from: (i) the use or the inability to use the Service; (ii) the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the Service; (iii) unauthorized access to or alteration of Your transmissions or data; (iv) statements or conduct of any third party on the Service; or (v) or any other matter relating to the Service.

Limited Warranty and Limitation of Damages

brick&mobile makes no warranty, and You hereby waive and disclaim any other warranty, representation, or condition of any kind or nature, express or implied, verbal or written, statutory or otherwise, including, without limitation, any warranty representation or condition of merchantability or fitness for purpose. You acknowledge that brick&mobile will make reasonable efforts, but does not warrant that the Service will work on all mobile platforms. You acknowledge that brick&mobile is not responsible for the results obtained by Your clients on their Mobile Websites. In every circumstance,

brick&mobile will have no liability for any damage, loss of productivity, or loss or alteration of matter detrimental to Your client’s property due to the use of third-party software or hardware installed or recommended by brick&mobile.

You represent and warrant that any Content provided to brick&mobile so that brick&mobile may carry out the terms of this Agreement does not violate the rights of any third party, whether arising by agreement or by operation of law. You hereby (i) grant to brick&mobile a license to use any such works or intellectual property attaching to such works ; and (ii) waive any and all moral rights in association with any such works provided to brick&mobile. You further represent and warrant that such license and waiver of moral rights does not violate any rights of any third party.

Customer Indemnification and Liability

You agree to indemnify, save and hold harmless brick&mobile from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Your responsibilities or obligations, representations or warranties under this Agreement.

You waive any claim for damages of any kind or nature against brick&mobile and agree that Your sole and exclusive remedy for damages (either in contract or tort) is the return of the price paid to brick&mobile limited to a total value of $1,200.

Ownership Rights

Customer shall own and retain all rights to the Content provided by Customer, which includes all Content. brick&mobile shall own all rights, title, and interest in and to all other elements, materials, data, graphics, and code of the Service including all interfaces, navigational devices, menus, menu structures or arrangements, icons, help and other operational instructions, and all other components of any source or object computer code that comprise the Service, all literal and non-literal expressions of ideas that operate, cause, create, direct, manipulate, access, or otherwise affect the Service and design elements. You shall not do anything that may infringe upon or in any way undermine brick&mobile’s right, title, and interest in the Service or any other intellectual property held by brick&mobile. brick&mobile reserves the right to display any portion of Your publicly available Service for the purpose of displaying rendered work to other potential customers or for marketing purposes.

Intellectual Property

Each Party acknowledges that in connection with this Agreement it may have access to proprietary information of the other Party, including but not limited to trade secrets, data, processes, technical information, business knowledge, pricing, service providers, hosting providers, technology partners, research and development and marketing strategies (hereinafter collectively referred to as “Confidential Information”). You acknowledge that the disclosure of Confidential Information in any manner would be highly detrimental to the interest of brick&mobile. You agree that the right to maintain such Confidential Information constitutes a proprietary right, which brick&mobile is entitled to protect.  Accordingly, You, Your agents and Your employees agree that they cannot disclose or permit (either during this Agreement or thereafter) the disclosure any Confidential Information to any person, or use or permit the use of same, for any purposes other than those of the owner of such information. You shall not use any Confidential Information of brick&mobile except as may be necessary to perform your respective obligations under this Agreement. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of You.

General Policies

Your use of the Service is at Your sole risk. The Service is provided on an “as is” and “as available” basis.

You understand that brick&mobile uses third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Service.

You must not modify, adapt or hack the Service or modify another website so as to falsely imply that it is associated with the Service, or any other brick&mobile Service.

You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service without the express written consent by brick&mobile.

brick&mobile may, but has no obligation to, remove Content and Services containing Content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or this Agreement

Verbal, physical, written or other abuse (including threats of abuse or retribution) of any brick&mobile customer, employee, member, or officer will result in immediate Service termination.

You understand that the technical processing and transmission of the Service, including Your Content, may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.

You must not upload, post, host, or transmit unsolicited email, SMSs, or “spam” messages.

You must not transmit any worms or viruses or any code of a destructive nature.

Privacy

Parties agree that all issues concerning applicable privacy legislation compliance are for the Customer. You can review the most current version of the Privacy Policy at any time at: http://www.brickandmobile.com/privacy/

Assignment

brick&mobile may assign all of its rights, interests and obligations pursuant to this Agreement to any person or Company without Your consent. You shall not assign or transfer any of Your right or obligations pursuant to this Agreement without the prior express written consent of brick&mobile.

Severability

If any provision of this Agreement is determined to be invalid or unenforceable in whole or in part, such invalidity or unenforceability shall attach only to such provision or part thereof and the remaining part of such provision and all other provisions hereof shall continue in full force and effect.

Independent Legal Advice

You acknowledges that You have had the opportunity (whether taken or not) to seek independent legal advice with respect to this Agreement.

Jurisdiction

This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario, Canada.

Entire Agreement

This Agreement shall insure to the benefit of and by binding upon each Party and its heirs, executors, administrators and permitted successors and assigns.

The failure of brick&mobile to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.

This Agreement constitutes the entire agreement between You and brick&mobile with respect to the subject matter hereof and cancel and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written (including, but not limited to, any prior versions of this Agreement) between the You and brick&mobile with respect thereto.

Contact Us

Questions about the Terms of Service should be sent to support@brickandmobile.com.

 

Last modified: April 24, 2013



THE FOLLOWING AGREEMENT APPLIES TO WHITE LABEL MOBILE CMS PARTNERS 

BRICK&MOBILE WHITE LABEL MOBILE CMS AGREEMENT

This White Label Mobile CMS Agreement (hereinafter referred to as “Agreement”) is between brick&mobile, a division of Axiom Marketing Inc. (hereinafter referred to as “Company”) and you, (hereinafter referred to as “White Label”).

BY ACCEPTING THIS AGREEMENT, EITHER BY COMPLETING THE ONLINE APPLICATION PROCESS OR BY CLICKING A BOX INDICATING WHITE LABEL’S ACCEPTANCE OF THIS AGREEMENT, WHITE LABEL AGREES TO BE BOUND BY THE FOLLOWING AGREEMENT.

If White Label is entering into this agreement on behalf of a company or other legal entity, White Label represents that White Label has the authority to bind such entity to these terms and conditions. If White Label does not have such authority, or if White Label does not agree with the terms of this Agreement, White Label must not accept this Agreement.

WITNESSETH:

WHEREAS, White Label desires to license a White Label Mobile CMS (hereafter referred to as “Service” or “Services”) from Company; and

WHEREAS, White Label intends to engage third parties (hereinafter referred to as “White Label Customers”).  Company, White Label and White Label Customers are hereafter collectively referred to as “Parties” or “Party”.

WHEREAS, White Label desires to resell licenses of Company’s Services to White Label Customers.  These White Label Customers may also in turn resell and market the Service access to other small and medium businesses (hereinafter referred to as “SMB” or “SMBs”);

NOW, THEREFORE, in consideration of the mutual premises and covenants herein, the parties agree as follows:

1. Services

Services will be provided to White Label by Company under the terms of this Agreement and will enable White Label to:

  • Create and manage mobile websites through a Service branded with White Label’s logo;
  • Operate the Service using a domain name owned by White Label;
  • Allow White Label Customers and SMBs to create and manage mobile websites;
  • Publish mobile websites using domain names owned by White Label, White Label Customers and SMBs;
  • Add various and sundry modules to the mobile websites including location(s) with mapping, events, external links, generic content, menus and sub-menus, coupons and promotions, photo albums, reviews and external links (includes social media), RSS feeds, YouTube videos;
  • Provide auto-detection and auto-redirection for traffic generated from mobile devices; and
  • Provide a method to track statistics using Google Analytics.

From time to time, Company may issue an update to the Service which may add, modify, and/or remove features from the Service. These updates may be pushed out automatically with little or no notice, although Company will attempt to notify White Label in advance of an upcoming update, including details on what the update includes, whenever possible.

2. Service Terms

White Label, White Label Customers and SMBs hereby agree to the following Service Terms, and must:

  • Be responsible for all trade-marks, logos, design, media, text, graphics, animations, audio components, video components, photos or any other information (hereinafter collectively referred to as “Content”) posted and activity that occurs with the Services (even when Content is posted by White Label Customers, SMBs, or others who have access to the Services);
  • Not use the Service for any illegal or unauthorized purpose. White Label must not, in the use of the Service, violate any laws in White Label’s or Company’s jurisdiction (including but not limited to copyright laws);
  • Use good, fair and honest business practices in signing up White Label Customers;
  • Not send SPAM mail to promote any of Company’s products or services, the breach of which may result in immediate termination of this Agreement and/or legal action;
  • Mandate that its White Label Customers are notified of and agree to terms outlined in this Agreement;
  • Be a human. Service registration or access by “bots” or other automated methods is not permitted.

Violation of any of these Service Terms may result in the termination of individual user sites and/or White Label Customers and/or SMBs operating under White Label’s Services. White Label understands and agrees that Company cannot be responsible for the Content posted on the Service and White Label nonetheless may be exposed to such Content. White Label agrees to use the Service at White Label’s own risk, and to hold Company harmless for any loss, misconduct, or unauthorized use of the Service.

If any unauthorized use occurs, Company may hold White Label or any party that White Label have assigned liable for any loss or damage that are a result of the breach of this Agreement.

3. General Policies

White Label’s use of the Service is at White Label’s sole risk. The Service is provided on an “as is” and “as available” basis.

White Label understands that Company uses third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Service.

White Label must not modify, adapt or hack the Service or modify another website so as to falsely imply that it is associated with the Service, or any other company service.

White Label agrees not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service without the express written consent by Company.

Company may, but has no obligation to, remove Content and Services containing Content that Company determines in its sole discretion to be unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any Party’s intellectual property, or this Agreement.

Verbal, physical, written or other abuse (including threats of abuse or retribution) of any Company customer, employee, member, or officer will result in immediate Service termination.

White Label understands that the technical processing and transmission of the Service, including White Label’s Content, may be transferred unencrypted and involve: (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.

White Label must not upload, post, host, or transmit unsolicited email, SMSs, or “spam” messages.

White Label must not transmit any worms or viruses or any code of a destructive nature.

4. Company Approval

White Label shall make no commitment for or on behalf of Company or for which Company shall have any liability or responsibility unless Company shall have first given its approval and commitment.

5. Compensation for Services

Company’s compensation for services rendered to White Label pursuant to this agreement shall be determined in accordance with the fees and pay schedule set out in Exhibit 1 hereto:

White Label hereby authorizes Company to draw monthly automatic recurring payments from Visa or MasterCard, covering the initial setup fee, all monthly dues and all other applicable payments to White Label’s Service as stated in a monthly invoice that shall be e-mailed by Company. White Label shall pay this invoice via an automated electronic transaction.

The Service fee will renew automatically on a month-to-month basis, and monthly recurring payments, where applicable, will continue until notice of cancellation is received.

All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and White Label shall be responsible for payment of all such taxes, levies, or duties.

Company reserves the right to revoke access to Services if White Label’s balance is overdue or invoices are not paid in full.  At a minimum, Company will give 7 days notice to White Label before terminating this Agreement.

If for whatever reason, White Label defaults on payment or its invoices are not paid in full, White Label hereby authorizes Company or its assignee to collect the outstanding monies, plus service charges and interest, in any method available to Company. White Label shall indemnify Company for all collection or legal fees incurred by Company in order to satisfy White Label’s payment defaults.

There will be no refunds or credits for setup fees, partial months of Service, upgrade/downgrade refunds, or refunds for months unused with any Service.

6. Expenses

White Label shall be responsible for expenses resulting in the business operations and/or incurred by White Label, White Label Customers and SMBs.

7. Term

a.  Term: The initial term of this Agreement shall commence upon Services being rendered, in accordance with this Agreement, notwithstanding the date of execution and delivery hereof, and shall continue indefinitely.  Agreement will remain binding unless either Party terminates this Agreement, in accordance with the terms of this Agreement.b.  Termination by Company: In the event that Company wishes to terminate this Agreement, Company shall provide White Label with a 45-day advance notice prior to discontinuing Services unless White Label breaches any part of this Agreement.

c.  Right of Company Upon Termination: Upon termination of this Agreement, Company shall have no obligations to White Label other than as may be specified herein. Company will not be held responsible or liable for any damages that White Label or White Label Customers incur as a result of any agreements made between White Label, White Label Customers and/or SMBs. Upon expiration or termination of this Agreement: (i) White Label shall return or, at Company’s request, destroy all confidential information (including but not limited to advertising and training materials); (ii) White Label shall cooperate in the transfer of all assignable contracts, and agreements and all rights and claims thereto; and (iii) other than as provided herein, all rights and obligations of each Party under this Agreement, exclusive of the Service, shall survive.

d.  Right of White Label Upon Termination: Upon termination of this Agreement, White Label shall have no obligations to Company other than as may be specified herein. Upon termination of this Agreement, Company shall deliver to White Label all mobile website data (including, but not limited to, White Label Customer information, contact information, images, menus, site structures and general website information in raw database format) of websites built by White Label during the term of this Agreement. Company shall cooperate in the transfer of all assignable contracts, and agreements and all rights and claims thereto.

8. Immediate Termination

Either Party will have the right to terminate this Agreement immediately upon providing written notice upon the occurrence of any of the following events by the other Party:

a.  the Party’s insolvency, bankruptcy, receivership, dissolution or making any assignment for the benefit of creditors;b.  the criminal charge or conviction of the other Party that either materially affects the Party’s ability to carry out its obligations under this Agreement or claims of dishonesty; or

c.  any civil judgement against the other Party, that either materially affects the Party’s ability to carry out its obligations under this Agreement or claims of dishonesty.

9. Ownership of Materials

All product ideas, concepts, themes, and other intellectual property rights or advertising materials supplied to White Label shall be and will remain the property of Company.

Company claims no intellectual property rights over the material White Label provides to the Service. White Label’s profile and materials uploaded remain property of White Label. However, by using the Company Service to create White Label’s mobile websites, White Label agrees to allow others to view and share White Label’s Content.

Company does not pre-screen Content, but Company and its designee have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available via the Service.

White Label shall be solely responsible for securing and paying for all digital Content licenses and any other Trademark or Copyright licenses from Content owners (or their agents) required in connection for White Label, White Label Customers and SMBs to use in connection with the Company Service.

10. Ownership Rights

White Label shall own and retain all rights to the Content provided by White Label. Company shall own all rights, title, and interest in and to all other elements, materials, data, graphics, and code of the Service including all interfaces, navigational devices, menus, menu structures or arrangements, icons, help and other operational instructions, and all other components of any source or object computer code that comprise the Service, all literal and non-literal expressions of ideas that operate, cause, create, direct, manipulate, access, or otherwise affect the Service and design elements. White Label shall not do anything that may infringe upon or in any way undermine Company’s right, title, and interest in the Service or any other intellectual property held by Company. Company reserves the right to display any portion of White Label’s publicly available Service for the purpose of displaying rendered work to other potential customers or for marketing purposes.

11. Intellectual Property

Each Party acknowledges that in connection with this Agreement it may have access to proprietary information of the other Party, including but not limited to trade secrets, data, processes, technical information, business knowledge, pricing, service providers, hosting providers, technology partners, research and development and marketing strategies (hereinafter collectively referred to as “Confidential Information”). White Label acknowledges that the disclosure of Confidential Information in any manner would be highly detrimental to the interest of Company. White Label agrees that the right to maintain such Confidential Information constitutes a proprietary right, which Company is entitled to protect.  Accordingly, White Label, White Label’s agents and White Label’s employees agree that they cannot disclose or permit the disclosure (either during this Agreement or thereafter) any Confidential Information to any person, or use or permit the use of same, for any purposes other than those of the owner of such information. White Label shall not use any Confidential Information of Company except as may be necessary to perform White Label’s obligations under this Agreement. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of White Label.

12. Independent Contractor

White Label shall not be deemed an employee of Company for any purpose whatsoever. White Label shall remain at all times an independent contractor.

13. Safeguarding Information

The Parties shall not prior to, during or after the term of this Agreement, reveal or otherwise make available to any other person any Confidential Information regarding the other party’s products, services, business, customers, or methods of operation learned by the other party while providing, or receiving Services hereunder. Any specifications, drawings, sketches, models, samples, tools, computer programs, technical or business information, or data, in written, oral, or graphic form or otherwise, furnished to either Party hereunder or in contemplation hereof shall remain the property of Company, or White Label, as the case may be.

14. Service and Password Security

White Label is responsible for maintaining the confidentiality of White Label’s Service password, and is responsible for all activities that occur under White Label’s, White Label’s Customer’s and SMB’s Service.  White Label agrees to immediately notify Company of any unauthorized use of White Label’s password or Service or any other breach of security, which includes but is not limited to computer viruses, trojan horses, spyware, malware, adware, hacking, and other malicious or unwanted means expressly or impliedly prohibited by, or inconsistent with, any provision of this Agreement.

Company reserves the right to revoke access to the Service, at its sole option and discretion and without notice to White Label, if any misuse or foul play occurs or is suspected within the system.

Company will not be liable for any loss or damage arising from White Label’s failure to provide Company with accurate information or to keep White Label’s password secure.

15. Hosting

Company will host White Label’s Service with a premium Internet hosting provider. White Label will be granted access to White Label’s Service from their own Internet domain and any sub-domains associated with the particular Service (example: admin.whitelabeldomain.com). Company will make reasonable efforts to monitor the uptime of the hosting account, but does not guarantee or warrant its reliability due to various external Internet factors.

16. Members Area Access

Under the terms of this Agreement, White Label will receive access to a secure online members section hereinafter referred to as to as “Members Area”) that can be found at http://www.brickandmobile.com/members/ .

Information shared in the Members Area is copyright of Company and must be kept confidential at all times. White Label may not share or sell any information to business owners, package or offer this information as a bonus, add this information to membership sites, or otherwise distribute this information without written consent from Company.  The trademarks, logos, and service marks that are displayed in Members Area information are the registered and unregistered marks of their respective owners.

Company reserves the right to revoke access to the Members Area at any time if any misuse or foul play occurs, or if unauthorized file sharing or multiple-IP logins are detected in the system.

17. Support

Technical support is available via email, telephone, or via the Company’s support forum found at http://support.brickandmobile.com. The technical support email address is support@brickandmobile.com.

Company will make the best efforts to respond to all reasonable requests in a timely manner.  White Label understands that Company will not be held liable for any loss or misfortune that may occur from support or technical recommendations, or the time at which it may take for the support or technical issue to be addressed.

In no case will Company be responsible to directly support White Label Clients or SMBs..

18. Warranty

Company does not warrant that: (i) the Service will meet White Label’s specific requirements; (ii) the Service will be uninterrupted, timely, secure, or error-free; (iii) the results that may be obtained from the use of the Service will be accurate or reliable; (iv) the quality of any products, Service, information, or other material purchased or obtained by White Label through the Service will meet White Label’s expectations; and (v) any errors in the Service will be corrected.

19. Liability

White Label expressly understands and agrees that Company shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if Company has been advised of the possibility of such damages), resulting from: (i) the use or the inability to use the Service; (ii) the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the Service; (iii) unauthorized access to or alteration of White Label’s transmissions or data; (iv) statements or conduct of any third party (including White Label Customers or SMBs) on the Service; or (v) or any other matter relating to the Service.

20. Limited Warranty and Limitation of Damages

Company makes no warranty, and White Label hereby waives and disclaims any other warranty, representation, or condition of any kind or nature, express or implied, verbal or written, statutory or otherwise, including, without limitation, any warranty representation or condition of merchantability or fitness for purpose.

White Label acknowledges that Company will make reasonable efforts, but does not warrant that the Service will work on all mobile platforms. White Label acknowledges that Company is not responsible for the results obtained by White Label’s Customers. In every circumstance, Company will have no liability for any damage, loss of productivity, or loss or alteration of matter detrimental to White Label Customer’s property due to the use of third-party software or hardware installed or recommended by Company.

White Label represents and warrants that any Content provided to Company so that Company may carry out the terms of this Agreement does not violate the rights of any third party, whether arising by agreement or by operation of law. White Label hereby: (i) grants to Company a license to use any such works or intellectual property attaching to such works; and (ii) waives any and all moral rights in association with any such works provided to Company. White Label further represents and warrants that such license and waiver of moral rights does not violate any rights of any third party.

21. White Label Customer Indemnification and Liability

White Label agrees to indemnify, save and hold harmless Company, their affiliates, agents, and employees from and against any and all claims, losses, actions, damages, expenses, and all other liabilities, including but not limited to reasonable attorney’s fees, arising out of services performed by White Label for Company or services performed by Company for White Label as the case may be.

White Label waives any claim for damages of any kind or nature against Company and agree that White Label’s sole and exclusive remedy for damages (either in contract or tort) is the return of the price paid to Company limited to a total value of $3,000.

22. Use of Company Name

Company will retain the right to use White Label’s name for promotional purposes unless expressly notified otherwise in writing by White Label.

23. Parties Not Partners

This Agreement does not constitute an agreement for a partnership or joint venture between the parties. All expenses and costs incurred by White Label in meeting its obligations under this Agreement shall be solely those of White Label, and Company shall not be liable for their payment. White Label can make no commitments with third parties that are binding upon Company without Company’s written consent.

24. Non-Exclusivity

White Label will not have an exclusive right to market, sell or resell Company’s Solutions, and no franchise is granted to White Label. Company expressly reserves the right to market, sell and resell Solutions itself and to contract with others to market, sell and resell Company’s Solutions.

25. Agreement Assignable; By Whom

This Agreement is personal to White Label, and White Label cannot assign or delegate White Label’s rights or duties to any third party, whether by contract, will, or operation of law, without Company’s prior written consent. Any attempt to do so shall be void. This Agreement shall inure to the benefit of the successors and assigns of the parties.

26. Notices

All notices that may be given by either Party to the other shall be deemed to have been duly given when made in writing and delivered in person, by regular mail, postage prepaid or electronic mail and addressed as follows:

TO COMPANY:
brick&mobile, a division of Axiom Marketing Inc.
1 Yonge Street, Suite 1801
Toronto, Ontario, Canada  M5E 1W7
kevin@brickandmobile.com
1-888-280-3197 x 701

27. Waiver

Failure to enforce any provision hereof shall not constitute a waiver of that or any other provision in any other circumstances.

28. Privacy

White Label can review the most current version of the Privacy Policy at any time at: http://www.brickandmobile.com/privacy/

29. Entire Agreement

This Agreement constitutes the entire Agreement between White Label and Company with respect to the subject matter hereof and cancel and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written (including, but not limited to, any prior versions of this Agreement) between White Label and Company with respect thereto.

30. Assignment

Company may assign all of its rights, interests and obligations pursuant to this Agreement to any person or Company without White Label’s consent. White Label shall not assign or transfer any of White Label’s right or obligations pursuant to this Agreement without the prior express written consent of Company.

31. Severability

If any provision of this Agreement is determined to be invalid or unenforceable in whole or in part, such invalidity or unenforceability shall attach only to such provision or part thereof and the remaining part of such provision and all other provisions hereof shall continue in full force and effect.

32. Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario, Canada.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized officers as of the day and year first above written.

 

EXHIBIT 1 WILL BE PROVIDED SPECIFIC TO EACH WHITE LABEL
Updated: December 1, 2012

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