Agreement for ACT! Facebook Lead Ads Service Powered By Tiger Pistol
The following terms and conditions, the Welcome Email Confirmation, and any Change Order are collectively referred to as the "Agreement." Tiger Pistol Inc. and/or its applicable parent, affiliates or subsidiaries ("us", "we" or "Tiger Pistol") provide the ACT! Facebook Lead Ads Service Powered By Tiger Pistol (the “Service”) to you ("you", "your" or "Customer") under the terms and conditions of this Agreement, which may be updated by Tiger Pistol from time to time. Customer desires to use the Service with the goal of generating Leads, and Tiger Pistol desires to provide the Service to Customer. This Agreement becomes effective on the date Customer accepts the terms of this Agreement by clicking the "I ACCEPT" button (the "Effective Date"). In consideration of the mutual covenants set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Customer and Tiger Pistol agree as follows:
2. Payment; Taxes; First Month Lead Guarantee.
2.1 Payment. The initial monthly subscription fee for the Service (the “Monthly Subscription Fee”) is set forth in the Welcome Email Confirmation. Customer will pay Tiger Pistol the Monthly Subscription Fee for each month that the Service remains in effect, and Customer hereby irrevocably authorizes Tiger Pistol to charge the credit card or other payment method provided for any such amounts when due. Amounts due will be automatically charged, in advance, and are not refundable. If Customer's credit card expires, Customer hereby gives Tiger Pistol permission to submit the credit card charge with a later expiration date. If Tiger Pistol does not receive timely payment of any amount due under this Agreement, Customer agrees to pay all amounts due pursuant to this Agreement upon demand and will reimburse us for all charges and fees we incur to collect payment.
2.2 Taxes. Customer understands and agrees that portions of the charges made under this Agreement may be for items or services that are subject to sales or other transfer taxes for which Customer shall be liable, and Customer agrees that Tiger Pistol may make allocations of the Monthly Subscription Fee to the taxable items or services provided to Customer and charge Customer such taxes in addition to the Monthly Subscription Fee. Customer agrees to timely pay such tax charges by the same payment due dates as the charges for Monthly Subscription Fee. If Tiger Pistol fails to timely charge sales or other transfer taxes it may, after the fact, charge Customer applicable taxes, and Customer agrees to pay such charges within 30 days of receipt of invoices therefore.
2.3 First Month Lead Guarantee. Tiger Pistol does not guarantee receipt of any specific number of Leads. However, if you do not receive any Leads during the first month of Service, you may request a refund of your first month’s Monthly Subscription Fee. To be eligible for the refund, your request must be made via email to email@example.com not later than 30 days after completion of the first month of Service.
3. Automatic Monthly Renewals and Cancellation. This Agreement shall become effective on the Effective Date and shall remain in effect until the Service is cancelled as set forth herein (the “Term”). When you agree to purchase the Service, you are committing to one (1) month of Service, and your commitment will automatically renew month to month thereafter (each, a “Monthly Service Period”), and Customer will be billed and agrees to pay the Monthly Subscription Fees for each Monthly Service Period, until the Service is canceled. Each of Tiger Pistol and Customer may cancel the Service effective as of the end of the then-current Monthly Service Period by providing notice prior to the end of the then-current Monthly Service Period to firstname.lastname@example.org (in the case of cancellation by Customer) and to Customer’s email address on file with Tiger Pistol (in the case of cancellation by Tiger Pistol). The provisions of Paragraph 2, Paragraphs 4-11, and this sentence shall survive the expiration of this Agreement.
4. Licenses and Ownership. Customer hereby grants Tiger Pistol and its designees a non-exclusive, irrevocable (during the Term), worldwide, transferable, sublicensable right and license, in connection with the Service, to (a) use, reproduce, mirror, distribute, modify, perform and display the Ads and Customer Content (or any portions thereof), (b) use Customer's name and logo and (c) distribute the Ads. As between Tiger Pistol and Customer, (i) Customer owns the Leads and the Customer Content and (ii) Tiger Pistol owns any content (other than the Customer Content), templates, data or technology, including all related intellectual property rights, in and to the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer relating to the Service and any data generated from the Service other than Leads. Customer is responsible for maintaining the confidentiality of the passwords to its Facebook account, and Customer may not share any data generated from the Service with any third party without Tiger Pistol’s prior written consent.
5. Representations and Warranties. By continuing to use the Service, Customer represents and warrants throughout the Term that (a) it has the full right, power and authority to grant the licenses and related rights granted herein and has acquired any and all third party clearances, permissions and licenses that are necessary in connection with Tiger Pistol’s exercise of such rights and licenses, (b) the Customer Content is true and accurate, does not violate any law or regulation and is not misleading, defamatory, libelous or slanderous, (c) Tiger Pistol’s use of the Customer Content in connection with providing the Service will not infringe upon or violate the rights or property interests of any third party and (d) it shall only use the Service in accordance with applicable state and federal laws and regulations, as well as professional rules and regulations applicable to Customer and Customer’s employees, contractors and representatives. Customer will notify Tiger Pistol in writing promptly if any of the foregoing representations and warranties becomes untrue.
6. Indemnification. Customer agrees to indemnify, defend and hold harmless Tiger Pistol, its successors, officers, directors, employees, designees and agents from and against any and all claims, actions, demands, costs, losses liabilities, penalties, damages and expenses (including reasonable legal and accounting fees) relating to or arising from the Customer Content, Customer's use of the Services, or breach (or alleged breach) of Customer's representations, warranties and covenants under this Agreement.
7. DISCLAIMERS. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. UNLESS EXPRESSLY SET FORTH IN THIS AGREEMENT, TIGER PISTOL MAKES NO, AND EXPRESSLY DISCLAIMS ANY, REPRESENTATION, WARRANTY, CONDITION OR GUARANTEE OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, OR OTHERWISE WITH RESPECT TO THE SERVICES OR THE FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE THEREOF. TIGER PISTOL RESERVES THE RIGHT TO REMOVE CUSTOMER CONTENT OR DECLINE TO PROVIDE THE SERVICE TO THE EXTENT THE CUSTOMER CONTENT OR CUSTOMER’S USE OF THE SERVICE DOES NOT COMPLY WITH THE TERMS OF THIS AGREEMENT, FACEBOOK’S TERMS OF SERVICE OR ANY APPLICABLE LAWS; PROVIDED, HOWEVER, THAT CUSTOMER MAY NOT EXPRESSLY OR IMPLIEDLY RELY UPON TIGER PISTOL’S APPROVAL TO SUPPORT ITS COMPLIANCE WITH ANY APPLICABLE LAW, RULE OR REGULATION. CUSTOMER IS SOLELY RESPONSIBLE FOR COMPLIANCE OF THE ADS AND USE OF THE SERVICE IN COMPLIANCE WITH ALL LOCAL, STATE AND FEDERAL LAWS AND REGULATIONS AND PROFESSIONAL RULES AND REGULATIONS APPLICABLE TO THE CUSTOMER AND CUSTOMER’S EMPLOYEES, CONTRACTORS AND REPRESENTATIVES. NOTHING CONTAINED IN THE FOREGOING SHALL SHIFT THE ULTIMATE LEGAL OR REGULATORY COMPLIANCE OBLIGATION IN ANY MANNER WHATSOEVER FROM CUSTOMER TO TIGER PISTOL, IT BEING MUTUALLY INTENDED THAT SUCH OBLIGATION IS AND SHALL REMAIN SOLELY WITH CUSTOMER.
8. LIMITATION OF LIABILITY. TIGER PISTOL WILL NOT BE LIABLE TO CUSTOMER (NOR TO ANY PERSON OR ENTITY CLAIMING RIGHTS DERIVED FROM CUSTOMER'S RIGHTS) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING COST OF COVER, LOST REVENUES, GOODWILL OR PROFITS OR LOSS OF BUSINESS OR DATA, ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER TIGER PISTOL WAS ADVISED, HAD OTHER REASON TO KNOW, OR KNEW OF THE POSSIBILITY THEREOF. CUSTOMER SHALL HAVE NO RECOURSE AGAINST TIGER PISTOL OR ITS DESIGNEES FOR ANY ALLEGED OR ACTUAL INFRINGEMENT OF CUSTOMER'S PROPRIETARY RIGHTS BY THIRD PARTIES OR FOR LOSS OR HARM DUE TO UNAUTHORIZED USE OF CUSTOMER'S ADS OR CUSTOMER CONTENT BY THIRD PARTIES. IN ANY EVENT, TIGER PISTOL’S MAXIMUM LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER THE CAUSE OF ACTION ARISES IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER TO TIGER PISTOL HEREUNDER WITHIN THE ONE (1) MONTH PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. YOU ACKNOWLEDGE THAT THESE LIMITATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN AND THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF PORTIONS OF THIS AGREEMENT ARE FOUND TO HAVE FAILED IN THEIR ESSENTIAL PURPOSE.
9. Electronic Contract. This Agreement is an electronic contract that sets out the legally binding terms of the Service. Customer (or its authorized agent) indicates acceptance of this Agreement by clicking on the "I ACCEPT" button. This action creates an electronic signature that has the same legal force and effect as a handwritten signature on a written contract under any applicable law or regulation, and is equally binding. By clicking the "I ACCEPT" button, Customer (or its authorized agent) acknowledges reading and accepting this Agreement and represents, warrants and agrees that Customer (or its authorized agent) has the power, authority and legal right to enter into this Agreement on behalf of Customer.
10. Defined Terms. "Customer Content" means any content or information provided by Customer or submitted, posted, transmitted or made available by Customer, including images, Customer's brand features, text, the content of Customer's website and any third party logos (e.g., society memberships). "Lead" means a form associated with your Ad submitted by a Facebook user.
11. General. This Agreement (a) is governed by the laws of the State of Texas, excluding its conflict of laws principles, (b) may be amended only in a writing signed by both parties or by Tiger Pistol e-mailing revised terms and conditions to Customer and (c) together with all terms and conditions incorporated by reference herein, constitutes the complete and entire expression of the agreement between the parties, and supersedes any and all other proposals, both oral and written, representations, warranties and agreements, whether written or oral, with respect to the subject matter hereof. Our failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. The exclusive venue for any dispute relating to this Agreement shall be Travis County, Texas, and Customer hereby waives any jurisdictional, venue or inconvenient forum objections thereto. CUSTOMER EXPRESSLY WAIVES ANY RIGHT TO A JURY TRIAL, TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS, OR TO PURSUE OR PARTICIPATE IN ANY CLAIM AS A REPRESENTATIVE ACTION OR CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. Prior to initiating any legal action, the initiating party shall give the other party at least 30 days written notice of its intent to file an action. Tiger Pistol will provide such notice by e-mail to Customer's e-mail address on file with Tiger Pistol, and Customer must provide such notice by e-mail to email@example.com. During such notice period, the parties will endeavor to settle amicably by mutual discussions any disputes, differences, or claims whatsoever related to this Agreement. Failing such amicable settlement and expiration of the notice period, any controversy, claim, or dispute arising under or relating to this Agreement shall finally be settled in a court of competent jurisdiction as set forth herein. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the Service or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. This Agreement is not exclusive to either party, which means that Tiger Pistol can provide the Services to any other customer and Customer can procure similar services from any other service provider. Tiger Pistol may assign this Agreement, in whole or in part, and the parties' rights and obligations will bind and inure to the benefit of their respective successors and permitted assigns. These terms shall be severable and construed to the extent of their enforceability in light of the parties' mutual intent. Section headings are provided solely for reference purposes and are of no force or effect. Tiger Pistol is an independent contractor of Customer and does not have the authority to make any commitment of any kind that is binding on Customer. Customer expressly agrees that any varying or additional terms contained in any purchase order or any other written notification or document issued by Customer in relation to the Service shall be of no effect and may be accepted for administrative convenience only.