Terms & Conditions
AGREEMENT TO TERMS
This PRIVATE LABEL APP AGREEMENT (“Agreement”) is effective as of the date set forth on the signature page hereto (“Effective Date”) and is by and between Action Data Systems, LLC (“Action”) and the undersigned client (“Client”). This Agreement, along with the schedules and exhibits and the sales proposal from sales meetings ("sales proposal") hereto, constitutes the complete agreement of the parties relating to the subject matter hereof and supersedes any prior representations or agreements. Any reproduction of this Agreement made by reliable means, whether signed manually or electronically, shall have the same effect as an original. No amendment to this Agreement, or waiver of any terms hereof, shall be effective unless agreed by the parties in writing.
- PRIVATE LABEL APP
During the Term, Action will design, develop, maintain and host a private-label iOS and Android mobile app (the “App”) populated with content and data provided by Client (“Client Data”) and containing the features set forth on Exhibit A and Exhibit B(the “Services”), to be available to end-users through the Apple Store and Google Play (collectively, the “App Store”). The Services will include submission of the App to the App Store and use of commercially reasonable efforts to obtain approval for the App to be distributed to end-users on the App Store; provided that, if the App Store denies approval on account of the Client Data, the Client will make changes to the Client Data as necessary to obtain the App Store’s approval. Action will provide updates, modifications, and improvements to the App from time to time and will refresh the content of the App, based on new Client Data provided by Client, as set forth on Exhibit A and Exhibit B. Client has a nonexclusive, nontransferable right and license to market the App to Client’s customers and visitors (“Visitors”). Action’s relationship with Visitors will be governed by a separate end user agreement between Action and each Visitor. Client shall have sole responsibility for ownership of, the accuracy, quality, integrity, legality, reliability, and appropriateness of all Client Data. Client grants to Action a non-exclusive, royalty-free, non-transferable (except as provided in Section 12) and sublicensable license, during the Term, to reproduce, perform, display, transmit and distribute the Client Data through the Service on the App. The foregoing license includes the right to permit end-users to access the Client Data utilizing the App. Subject to the foregoing license, Client retains all ownership and intellectual property rights in the Client Data. Client represents and warrants that it is the owner of the Client Data and that the Client Data will not infringe, misappropriate or violate any intellectual property rights or other rights of any third party and will not violate any law.
The client agrees to pay the fees (the “Action Fees”) set forth during the sales meetings. The client shall pay all invoices within fifteen (15) days of the invoice date. Except as expressly set forth in this Agreement, all Action Fees are nonrefundable.
In the event of any late payment, Client shall be obligated to pay, in addition to any payment due, the amount of 1.5% interest per month, or the highest rate permitted by applicable law, whichever is less, on any outstanding account balance.
- TERM AND TERMINATION
The term of this Agreement (the “Initial Term”) shall begin upon the Effective Date and shall continue in force for the length of time set forth in the sales proposal. This Agreement will automatically renew for the length of time set forth in the sales proposal unless earlier terminated pursuant to the express provisions of this Agreement or either party gives the other party written notice of non-renewal at least sixty (60) days prior to the expiration of the then-current term (each a “Renewal Term” and, collectively, together with the Initial Term, the “Term”). Either party may terminate this Agreement upon written notice to the other party if such other party is in breach of any material term or condition of this Agreement (including without limitation failure to pay any Action Fee) and has not cured such breach within a period of thirty (30) days after receipt of written notice from the non-breaching party of such breach, provided that such period shall automatically be extended for an additional thirty (30) days if the breaching party is not in breach of any payment obligation under this Agreement and is diligently working to cure such breach.
Either party may terminate this Agreement immediately on written notice to the other party if such other party becomes insolvent, makes a general assignment for the benefit of creditors, files a voluntary petition of bankruptcy, suffers or permits the appointment of a receiver for its business or assets, or becomes subject to any proceedings under any bankruptcy or insolvency law, whether domestic or foreign or has wound up or liquidated, voluntarily or otherwise.
Upon the effective date of any termination or expiration of this Agreement for any reason, (i) Action will cease providing the App and Services, and all rights and licenses granted to Client hereunder with respect to the App and Services will immediately cease; (ii) Action will request removal of the App from the App Store; (iii) Client will immediately cease use of the App and Services; and (iv) Client will pay to Action any outstanding Action Fees. The obligations of Action and Client under Sections 3, 4, 7, 8, 9, 10, and 13 of this Agreement will survive expiration or termination of this Agreement.
- INTELLECTUAL PROPERTY RIGHTS
Client acknowledges that subject to the rights and licenses expressly set forth in this Agreement, Action, or its third-party licensors, are the sole and exclusive owners of (a) all right, title and interest in and to the App and the Services, (b) any research results, ideas, algorithms, methodologies, techniques and other information created, developed, published, conceived or first reduced to practice by Action or in any way made available through the App or the Services including, without limitation, any modifications thereto or other derivative works based thereon, and (c) all copyrights, trademarks, patents, trade secrets and other intellectual property rights related thereto. Nothing contained herein shall create, nor shall be construed as, an assignment to Client of any right, title or interest in or to the App or the Services. Except as expressly permitted by this Agreement, Client shall not: (i) copy, print, reproduce, distribute, download, frame, mirror, republish, display, transmit, link to, modify, transfer or assign, create any derivative works based on the App or the Services; or, (ii) license, sell, rent, lease, transfer, assign, distribute, display, disclose, grant a security interest in, or otherwise commercially exploit the App or the Services. Action acknowledges that Client is the sole and exclusive owner of all right, title, and interest in and to the Client Data, and Client retains all rights in and to the Client Data.
All notices or other communications to or upon either party shall be in writing delivered by overnight courier or email to the addresses set forth on the signature page hereto or such other address as a party may specify in writing. Any notice so sent shall be deemed given when delivered.
- RELATIONSHIP OF PARTIES
The relationship of the parties under this Agreement is that of independent contractors. Neither Action nor Client can bind the other, and nothing in this Agreement creates any relationship of principal or agent.
- CONFIDENTIALITY; PUBLICITY
Each party (the “Receiving Party”) shall keep, and shall cause its employees and agents to keep, confidential any and all Confidential Information of the other party (the “Disclosing Party”) in the same manner as it protects its own confidential information of like kind, but in no event shall it exercise less than due diligence and care. “Confidential Information” means (i) all information that the Receiving Party receives from the Disclosing Party that is marked as confidential or proprietary, or that would, by the nature of the information or the manner in which it is disclosed, be reasonably deemed confidential; and (ii) the terms and conditions of this Agreement, including without limitation the Action Fees. The Receiving Party agrees: (i) to exercise at least the same degree of care to safeguard the confidentiality of any of the Disclosing Party’s Confidential Information as the Receiving Party exercises to safeguard the confidentiality of its own confidential information, but not less than reasonable care; (ii) to use the Disclosing Party’s Confidential Information only in connection with exercising its rights and performing its obligations under this Agreement; (iii) to not disclose or disseminate the Disclosing Party’s Confidential Information to any third party; and (iv) that the only employees and agents who will have access to the Disclosing Party’s Confidential Information will be those with a need to know and who are bound to maintain the confidentiality of such Confidential Information. Upon termination of this Agreement, the Receiving Party shall return or deliver to the Disclosing Party or shall certify to the Disclosing Party that it has destroyed, all Confidential Information. The Receiving Party acknowledges that due to the unique value of the Confidential Information of the Disclosing Party, in the event of any breach of this Section by the Receiving Party, the Disclosing Party may not have an adequate remedy at law and shall be entitled to enforce its rights hereunder by an action for specific performance and injunctive or other equitable relief without the necessity of proving actual damage or posting a bond.
Neither party shall issue or release any announcement, statement, press release or other publicity or marketing material relating to this Agreement or otherwise use the other party’s trademarks, service marks, trade names, logos, domain names or other indicia of source, affiliation or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that Action may, without Client’s consent, include Client’s name, logo and/or other indicia in its lists of Action’s current or former customers in promotional and marketing materials.
- DISCLAIMER OF WARRANTIES
Action makes no warranties or representations, express or implied, with respect to any actions, strategies, expenditures or operations pursued by Client as a result of information provided by Action. THE APP AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY. ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED. ACTION DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR OR BUG-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS CODE, OR WILL PERFORM IN AN UNINTERRUPTED MANNER. Action makes no representation that the App or the Services are appropriate or available for use in locations other than the United States of America. If the Client uses the App and the Services outside of the United States of America, the Client is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries.
Action shall defend, indemnify and hold harmless the Client from and against all third party losses awarded against Client in a final judgment based on a claim (i) of Action’s material breach of any representation, warranty or obligation of Action set forth in this Agreement; or (ii) that Client’s use of the App or the Services infringes any intellectual property right of a third party; provided, however, that Action shall have no obligation under this Section 9 with respect to claims arising out of (A) any Client Data provided by Client for use in connection with the App or the Services; (B) the use of the App or the Services in combination with any materials or equipment not supplied by Action or specified in writing by Action, if the infringement would have been avoided by the use of the App or Services not combined with such materials or equipment; or (C) any modifications or changes made to the App or the Services by or on behalf of any person other than Action. Client shall defend, indemnify and hold harmless Action from and against all third party losses awarded against Action in a final judgment based on a claim of (i) Client’s material breach of any representation, warranty or obligation of Client as set forth in this Agreement; or (ii) Action’s use of Client Data.
- LIMITATION OF LIABILITY
In the event of termination of this Agreement by either party pursuant to Section 3 hereof, Client shall be entitled to receive, as its sole and exclusive remedy, a pro-rata refund of Client’s prepaid Action Fee, and upon such refund, Action shall have no further liability to Client. This remedy is in lieu of all other remedies, whether oral or written, express or implied. IN NO EVENT SHALL ACTION’S AGGREGATE LIABILITY ARISING OUT OF OR BASED UPON THIS AGREEMENT REGARDLESS OF THE FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT, INCLUDING WITHOUT LIMITATION, ANY ACTION IN TORT OR CONTRACT, EXCEED THE SUM OF ALL ACTION FEES PAID BY CLIENT PURSUANT TO THIS AGREEMENT FOR THE SIX (6) MONTH PERIOD PRECEDING THE CLAIM. IN NO EVENT SHALL ACTION BE LIABLE FOR LOSS OF PROFITS OR DATA, USE OR INTERRUPTION OF BUSINESS, PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES ARISING OUT OF OR RELATING TO CLIENT'S USE OF THE SERVICES OR OTHERWISE UNDER THIS AGREEMENT, EVEN IF ACTION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- FORCE MAJEURE
If the performance of any obligation by Action or Client under this Agreement (other than the payment of money) is prevented, restricted or interfered with by reason of any act or event which is beyond the reasonable control of the party affected, then the affected party shall be excused from such performance to the extent of such prevention, restriction or interference, provided that it shall use reasonable commercial efforts to avoid or remove such causes of nonperformance. If either party is unable to perform for a period of more than sixty (60) days due to any such act or event, the other party may terminate this Agreement.
Neither this Agreement nor any rights or obligations hereunder, in whole or in part, are assignable by Client without the prior written consent of Action; and any attempt to assign the rights, duties or obligations under this Agreement without such consent shall be a breach of this Agreement and be null and void.
- GOVERNING LAW; VENUE
This Agreement shall be deemed to have been made in and shall be construed pursuant to the laws of, the State of Rhode Island, without regard to conflict of law principles. The parties agree that any action or proceeding arising out of or related to this Agreement shall be brought exclusively in the state or federal courts of the State of Rhode Island, and each of Action and Client hereby irrevocably accepts the exclusive personal jurisdiction and venue of those courts for the purpose of any suit, action or proceeding.
EXHIBIT A - APP FEATURES
Private label app to run on current iOS and Android devices of Visitors. The App will allow Visitors to hear the tour’s information audio, view video, text, and pictures, and perform navigation functions on their internet-connected mobile devices based on GPS location. The App will offer tour guide features to enhance Visitors’ tour experience, share moments with friends/family over social networks, and conduct e-commerce activities such as gift store and ticket purchases and making donations.
Number of downloads: unrestricted
You represent that if you are purchasing goods or services from us that (1) any credit information you supply is true and complete, (2) charges incurred by you will be honored by your credit card company, (3) you will pay the charges incurred by you at the posted prices.
- REFUND POLICY
If you are dissatisfied with services purchased from this app or site because they do not perform as stated; and if they are directly owned and operated by us, we will refund your purchase price upon you notifying us in writing about reasons of your dissatisfaction . Please note, however, that certain products and services sold on our app are owned and operated by third parties (and indicated as such) and we have no responsibility or liability for those products or services.
- LINKING TO or FROM OUR SITE and APP
You may provide links to our site, provided (a) that you do not remove or obscure, by framing or otherwise, advertisements, the copyright notice, or other notices on the site, (b) your site does not engage in illegal or pornographic activities, and (c) you discontinue providing links to our apps and site immediately upon request by us.
- LINKS TO OTHER WEBSITES
Our apps and site may contain links to other websites. We are not responsible for the content, accuracy, or opinions expressed in such websites, and such websites are not investigated, monitored, or checked for accuracy or completeness by us. Inclusion of any linked website on our site does not imply approval or endorsement of the linked website by us. If you decide to leave our site and access these third-party sites, you do so at your own risk.
Our app and site may contain advertising and sponsorship. Advertisers and sponsors are responsible for ensuring that material submitted for inclusion on our site is accurate and complies with applicable laws. We are not responsible for the illegality or any error, inaccuracy, or problem in the advertiser or sponsor’s materials.
- THIRD-PARTY CONTENT
Third-party content may appear on our apps and site or may be accessible via links from our site. We are not responsible for and assume no liability for any content on these sites. You understand that the information and opinions in the third-party content represent solely the thoughts of the author and is neither endorsed by nor does it necessarily reflect our belief.
- THIRD-PARTY SERVICES
We may allow access to or advertise certain third-party product or service providers (“Suppliers”) from which you may purchase certain goods or services. You understand that we do not own, operate, or control the products or services offered by Suppliers. Suppliers are responsible for their operations and customer service. You agree that use or purchase of goods or services from Suppliers is at your sole risk and is without warranties of any kind by us, expressed, implied, or otherwise including but not limited to warranties of title, fitness for purpose, merchantability or non-infringement. Under no circumstances are we liable for any damages arising from any interactions between you and Suppliers or for any information appearing on Supplier’s sites or any other site linked to our site. By your purchase of any service or product provided by any supplier through this website, you expressly agree that we are not responsible or liable for any act or omission by any such supplier, and you expressly hold us harmless from any charge, claim or injury caused or allegedly caused any such act or omission.
The information on this app and site, including without limitation all design, text, images, photographs, press releases, and other information, are protected under the United States and other copyright laws and are owned by us and/or used under license from the copyright owner. The information may not, except under valid written license, be copied, reproduced, transmitted, displayed, performed, distributed, rented, sub-licensed, altered, stored for subsequent use or otherwise used in whole or in part in any manner without our prior written consent. Our trademarks, logos, images, and service marks used on this app and site are our property and may not be used without our prior written consent.
This app and website are provided as a licensed service to its users on an “as is” basis. We make no representations or warranties of any kind, whether express or implied, as to the information, content, materials or products included on this site or as to the operation of the site.
- ERRORS, CORRECTIONS, AND CHANGES
We do not represent or warrant that the app and the Site will be error-free. We may make changes to the features, functionality, or content of the app and the Site at any time. We reserve the right in our sole discretion to edit or delete any documents, information, or other content appearing on the app and the Site.
- LIMITATION OF LIABILITY
We and any Affiliated Party shall not be liable for any loss, injury, claim, liability, or damage of any kind resulting in any way from (a) your use of this app and the Site, (b) any services or products obtained from this app and the Site, (c) any errors in or omissions from this app and the Site, (d) the unavailability or interruption of this App and the Site or any features thereof, (e) any content contained on this App and the Site.
- WAIVER OF LIABILITY
Parties: These terms and conditions (including the exclusion of liability) bind you and all persons with you including minors. You warrant that you have the authority to enter into these terms and conditions on behalf of those persons including any minors. In particular, you warrant that you have the authority to give the releases and indemnities set out in these terms and conditions on behalf of those persons. References in these terms and conditions to Action Data Systems include (where the context permits) our employees, agents, contractors, and suppliers, and these terms and conditions (including exclusions from liability) apply to their benefit.
Acknowledgments: Travelling with Action Data Systems requires you to drive your car or walking while viewing and listening to the tour. You may encounter unpredictable circumstances such as landslides, road blockages, floods, political unrest or delay of arrival, etc. You must have your own adequate car insurance.
Liability: You release Action Data Systems from all claims and liabilities arising out of or relating to your tour including (but not limited to) actions (or inactions) of Action Data Systems pursuant to these terms and conditions and including those caused or contributed to by third parties including suppliers to Action Data Systems and other participants on the tour. For the purpose of this clause “claims” means any allegation, cause of action, claim, demand, proceeding, litigation, investigation, judgment, loss, cost or expense of whatever nature and whether present or future, fixed or unascertained, actual or contingent and whether arising at law or in equity, under statute or otherwise. You indemnify Acton Data Systems for any loss suffered by it and against all claims (as defined in the preceding paragraph) and liabilities arising out of or related to your participation in the tour and any breach by you of these terms. You acknowledge that you cannot claim compensation or seek damages.
In any dispute arising hereunder, the parties expressly agree as follows: (a) neither party shall be considered the “drafter” of this Agreement; (b) venue for any dispute arising hereunder shall lie solely in Bristol County, RI and RI law shall govern such dispute; (c) each party hereto expressly waives right to trial by jury and agrees to have any dispute here-under heard by the court.
We use Google Display Advertising and Remarketing Tools with Google Analytics. To learn more about Google anonymous data collection please visit Google Adwords Remarketing Policy. To adjust your internet ad preferences in Google Account Settings, please log in to Google and visit the link to the Ads Preferences Manager.
In order to resolve a complaint regarding the Site or to receive further information regarding the use of the Site, please contact us at:
- Action Data Systems Llc.
- 32 Mallard Cove way, RI, 02806
- +1 714 333 0534