Terms and Conditions

TERMS OF USE

PLEASE READ THESE CUSTOMER TERMS OF USE CAREFULLY

This is a contract (“Agreement”) between you (“Customer”) and Ekun Software Systems, LLC d/b/a Loving My Customers (“Company”). It describes the services we will provide to you, how we will work together, and other aspects of our business relationship.  By using the Services (as defined herein), you are agreeing to these terms.

  1. DEFINITIONS
    • "Authorized Users" means the employees, agents or contractors of Customer authorized to use the Services pursuant to these Terms of Use and Company’s Privacy Policy.
    • "Customer Content" means all data and materials provided by Customer to Company, or uploaded to the Application for use in connection with the Services, including, without limitation, customer data files, documents, graphics, written materials, or any other materials uploaded to the Application by Customer or its Authorized Users.
    • “Documentation” means the description of the services, its features, and functionalities posted on the Website. 
    • “Order” means the electronic or paper record of Customer ordering the Services on a form and requiring information determined by Company.
    • “Privacy Policy” means the policy that describes how Company collects, uses, shares or otherwise processes your information, accessible at lovingmycustomers.com/lmc/legal/PrivacyPolicy_LMC.doc, which Privacy Policy is incorporated herein.
    • "Services" refer to the Website and specific internet-accessible service(s) purchased and/or utilized by Customer that provides use of the Loving My Customers mobile device application (“Application”) hosted by Company or its third-party contractors and made available to Customer and Authorized Users. Services may include but are not limited to consulting, marketing and promotional services, which may include facilitating a loyalty reward program, customer support, geo-targeting, and analytics.
    • "Software" shall mean the object code version of any software to which Customer is provided access as part of the Service, including any updates or new versions, and shall include the Application.
    • Subscription Term” means the period of time Customer is permitted to use the Services as agreed to by Customer and Company as set forth in the Order, subject to earlier termination pursuant to this Agreement.
    • Website” means the website accessible at lovingmycustomers.com.
  2. THE SERVICES
    • The Services. This Agreement sets forth the terms and conditions under which Company agrees to license to Customer the Application and provide services necessary for Customer’s use of the Application.
    • License of Services. During the Subscription Term, Customer will receive a nonexclusive, non-assignable, royalty free, worldwide right to access and use the Services solely for Customer’s internal business operations and for the number of Authorized Users requested by Customer under Orders, as submitted and accepted by Company from time to time pursuant to the terms of this Agreement. Company’s acceptance of an Order shall be Company’s first provision of the Services to Customer. Customer acknowledges that this Subscription is a services agreement and Company will not be delivering, nor shall be entitled to, copies of any Software.
    • Control and Location of Services. The method and means of providing the Services shall be under Company’s exclusive control, management, and supervision. Such methods and means shall be consistent with Company's Terms of Use and Privacy Policy each as amended from time to time.
    • Changes in Functionality. During the Subscription Term, Company will not materially reduce or materially eliminate functionality of the Services. In the event, however, Company does so, Customer, at Customer’s sole election, shall be entitled during the first thirty (30) days the Subscription Term to immediately terminate this Agreement and receive a return of any prepaid Service fees and as long as Customer has met all criteria set forth by the Company (“Money Back Guarantee”). Company shall have no obligation to provide additional functionalities to the Services during the Subscription Term.
    • Beta Services. Company may provide features or products that it is still testing and evaluating. These products and features are identified as alpha, beta, preview, early access or evaluation (or words or phrases with similar meanings) (collectively "Beta Services"). Notwithstanding anything to the contrary in this Agreement, the following terms apply to all Beta Services: (a) Customer may use or decline to use any Beta Services; (b) Beta Services may not be supported and may be changed at any time without notice to Customer; (c) Beta Services may not be as reliable or available as the other Services; (d) Beta Services have not been subjected to the same security measures and auditing to which the other Services have been subjected; and COMPANY SHALL HAVE NO LIABILITY OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR IN CONNECTION, DIRECTLY OR INDIRECTLY, WITH BETA SERVICES – CUSTOMER AGREES TO USE THE BETA SERVICES AT ITS OWN RISK ON AN AS-IS BASIS.
  3. CUSTOMER RESPONSIBILITIES

3.1.      Assistance. Customer shall provide Company all information and assistance requested by Company to enable Company to deliver the Services. Customer acknowledges that Company’s ability to deliver the Services in the manner provided in this Agreement may depend upon the accuracy and timeliness of such information and assistance.  Company will have access to all Customer software for the purposes of onboarding, implementation and ongoing support. 

  • Compliance with Laws. Customer shall comply with all applicable local, state, national and foreign laws in connection with its use of the Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data. Customer acknowledges that Company exercises no control over the content of the information transmitted by Customer or its Authorized Users through the Services. Customer shall not upload, post, reproduce or distribute any information, software or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights.
  • Unauthorized Use: False Information. Customer shall: (a) notify Company immediately of any unauthorized use of any password or user id or any other known or suspected breach of security, (b) report to Company immediately and use reasonable efforts to stop any unauthorized use of the Services that is known or suspected by Customer or any Authorized User, and (c) not provide false identity information to gain access to or use the Services
  • Responsibility for Authorized Users. Customer shall be solely responsible for the acts and omissions of its Authorized Users. Company shall not be liable for any loss of data or functionality caused directly or indirectly by Customer’s Authorized Users. Additionally, Customer shall ensure its Authorized Users comply with Company’s License Agreement and Privacy Policy as amended from time to time by Company.
  • Customer Input. Customer is solely responsible for collecting, inputting and updating all Customer information stored within the Application ("Customer Content") and for ensuring (a) that the Customer Content does not include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark or other intellectual property right of any third party or contain anything that is obscene, defamatory, harassing, offensive or malicious, and (b) that Customer has collected and handled all Customer Content in compliance with all applicable data privacy and protection laws, rules, and regulations.
  • Ownership and Restrictions. Customer retains ownership and intellectual property rights in and to its Customer Content. Company retains all ownership and intellectual property rights in and to the Services, Application, programs, and anything developed and delivered under the License Agreement by any person or entity, including but not limited to all modifications, improvements, upgrades, derivative works and feedback related thereto and intellectual property rights therein
  • Company shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Authorized Users, relating to the operation of the Application and Services.

 

  1. RESTRICTIONS. Customer shall not, and shall not permit any person or entity using the Services, whether Authorized Users or other users of the Services, to: (i) copy or republish the Services, Software or Application, (ii) make the Services available to any person other than an Authorized User, (iii) use or access the Services to provide hosting services to third parties, (iv) modify or create derivative works based upon the Services or Documentation, (v) remove, modify or obscure any copyright, trademark, or other proprietary notices contained in the software used to provide the Services or in the Documentation, (vi) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software used to provide the Services, or (vii) access the Services or use the Application to build a similar product or competitive product.

 

  1. PAYMENT
    • Fees. Customer shall pay all fees specified in the Order. Except as otherwise specified herein, (i) fees are based on the Services ordered and not actual use, and (ii) Customer’s payment obligations are non-cancelable and fees paid are non-refundable except for the Money Back Guarantee.
    • Billing Company may invoice Customer by electronic mail in advance on the first (1st) calendar day of each month for Service fees applicable to Customer’s monthly use of the Services. Customer shall pay all amounts due hereunder by credit card, which amounts shall be charged each calendar month in advance at the beginning of the calendar month.  All fees are stated in United States Dollars, and must be paid by Customer to Company in United States Dollars.
    • All monthly fees or charges to Customer for the Services hereunder are exclusive of federal, state, local and foreign sales, use, excise, utility, gross receipts and value added (VAT) taxes and other similar tax-like charges, including tax-related surcharges or applicable tariffs. In the event Company passes such taxes or charges through to Customer, Company will bill Customer for such taxes and charges as a separate line item on each invoice. Company shall be solely responsible for any taxes, levies or other charges that arise from the income it receives from Customer hereunder.
    • Suspension for Non-Payment. Company reserves the right to suspend immediately delivery and access of the Services if Customer fails to timely pay any amounts due to Company under these Terms of Use. Suspension of Services shall not release Customer of its payment obligations under these Terms of Use.  Customer agrees that Company shall not be liable to Customer or to any third party for any liabilities, claims, or expenses arising from or relating to suspension of the Services resulting from Customer’s nonpayment.  Amounts due hereunder are due and payable regardless of whether or not Customer collects any amounts from any Customer.
  2. TERM AND TERMINATION
    • Unless otherwise agreed to by Customer and the Company, the Subscription Term commences when Customer orders the Services on the Website and will continue in effect until terminated by Customer or Company as set forth in this Section 6.
    • Termination by Company. Company shall have the right to discontinue Services at any time without advance notice.  Customer’s sole and exclusive liability for such termination shall be to refund Customer any prepaid fees attributable to the period after termination.
    • Automatic Renewal. This Agreement will automatically renew at the end of the Subscription Term unless otherwise terminated in accordance with this Agreement.
    • Either party may terminate this Agreement immediately upon a material breach by the other party that has not been cured within thirty (30) days after notice of such breach. Customer is free to stop using the Services at any time but shall be responsible to pay all charges and other amounts for the Service through the end of the Subscription Term, even if this Agreement is terminated earlier for any reason.     
    • Suspension for Ongoing Company reserves the right to suspend immediately delivery of the Services if Company reasonably concludes that Customer, its Authorized User or any other user of the Services is fraudulently using the Services or causing or threatens to cause harm to Company, the Services, Company's other customers, or third parties. In the extraordinary case that Company must suspend delivery of the Services, Company shall promptly notify Customer of the suspension and the parties shall diligently attempt to resolve the issue. Company shall not be liable to Customer or to any third party for any liabilities, claims, damages, costs, or expenses arising from or relating to any suspension or termination of the Services in accordance with this Section 6.5. Nothing in this Section 6.5 will limit Company's rights under this Section 6.
    • Effect of
      • Upon termination of this Agreement, Company shall immediately cease providing the Services, and all Customer’s usage rights granted under this Agreement shall terminate.
      • If Company terminates this Agreement due to a material, uncured breach by Customer, then Customer shall immediately pay to Company upon demand all amounts then due and that would be otherwise due for the remainder of the Subscription Term. If Customer terminates this Agreement due to an uncured material breach by Company, then Company shall immediately refund to Customer all pre-paid amounts for any unperformed Services scheduled to be delivered after the termination date as Customer’s sole and exclusive liability for Company’s breach.

 

  1. WARRANTIES
    • Company represents and warrants that it has validly entered in this Agreement and has the legal power to do so. For any material breach of a warranty, Customer's exclusive remedy shall be as provided in Section 6.4.
    • COMPANY DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT THE SERVICES WILL BE PERFORMED ERROR-FREE, VIRUS-FREE, ERROR-FREE, OR UNINTERRUPTED, OR THAT COMPANY CAN CORRECT ALL SERVICES ERRORS. CUSTOMER ACKNOWLEDGES THAT COMPANY DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. THIS SECTION 7 SETS FORTH THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY COMPANY (EXPRESS OR IMPLIED) WITH RESPECT TO THE SUBJECT MATTER OF THESE TERMS OF USE. NEITHER COMPANY NOR ANY OF ITS LICENSORS OR OTHER SUPPLIERS WARRANT OR GUARANTEE THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED, NOR SHALL COMPANY OR ANY OF ITS SERVICE PROVIDERS BE LIABLE FOR UNAUTHORIZED ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER'S OR ANY USER'S DATA, FILES, OR PROGRAMS.
  2. LIMITATION OF IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST BUSINESS, PROFITS, DATA OR USE OF ANY SERVICE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), EVEN IF FORESEEABLE OR IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  COMPANY’S AGGREGATE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), SHALL BE LIMITED TO THE FEES ACTUALLY RECEIVED BY COMPANY FROM CUSTOEMR IN THE INITIAL ONE-MONTH OF THE SUBSCRIPTION TERM. 
  3. INDEMNIFICATION Customer shall indemnify, defend and hold Company and each of its directors, officers, employees, agents and assigns harmless from and against any and all claims, losses, damages and expenses (including attorneys' fees) arising in connection with (i) Customer’s breach of this Agreement, and (ii) any allegation by any third party, including any Authorized User, for any claims whatsoever related directly or indirectly to this Agreement, the Services, or any use of the Services, authorized or otherwise, including but not limited to a claim that that the Customer’s Content or any transmission of any information via the Services infringes any patent, copyright, trademark or other intellectual property right, or misappropriates any trade secret, of a third party.
  4. MISCELLANEOUS.
    • Non-Exclusive Customer acknowledges that Services are provided on a non-exclusive basis. Nothing shall in this Agreement shall prevent or restrict Company’s ability to provide the Services or technology to other parties.
    • Customer shall not assign these Terms of Use; however, Company is permitted to resell the Services in accordance with this Agreement so long as each of each Authorized User agrees to the License Agreement attached hereto and incorporated herein. This Agreement shall be enforceable against any permitted and unpermitted assignees.
    • No waiver shall be effective unless it is in writing and signed by the waiving party. The waiver by either party of any breach of this Agreement shall not constitute a waiver of any other or subsequent breach.
    • Customer agrees to allow Company to use Customer’s name and logo on the Company website, blog and/or in marketing materials including testimonials, case studies and as press references, to identify Customer as a customer of Company.
    • The headings of the sections are inserted for convenience of reference only and are not intended to be part of or affect the meaning or interpretation of the Agreement.
    • Force Majeure. Each party will be excused from performance for any period during which, and to the extent that, such party or any subcontractor is prevented from performing any obligation or Service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, third-party equipment failures, riots, acts of terrorism or war, epidemics, communication line or network failures, and power failures.
    • Copyright. We respect the intellectual property of others and ask that you do too. We respond to notices of alleged copyright infringement if they comply with the law, and such notices should be reported using our Copyright Policy. We reserve the right to delete or disable content alleged to be infringing and terminate accounts of repeat infringers. 
    • Severability. If any provision or portion of this Agreement shall be held invalid or unenforceable, the remainder of the Agreement shall not be affected thereby, and the remaining terms shall continue in effect and be binding on the parties, provided that such holding of invalidity or unenforceability does not materially affect the essence of the Agreement.
    • In the case of a conflict between provisions in the terms and conditions of this Agreement and any Exhibits attached hereto, the Exhibits shall take precedence with respect to the subject matter of the Exhibits.  Other than the rights granted to Company herein, neither party shall use trade names, business names, designs, logos, or marks of the other party unless permission has been provided via prior written approval.  All rights not explicitly granted to Customer are reserved by Company.  The Agreement constitutes the entire agreement between the parties and supersedes all prior agreements, discussions, and proposals regarding its subject matter. The Agreement may be modified only in a writing signed by both parties hereto. This Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same agreement.
    • Electronic Communications. For contractual purposes, you (1) consent to receive communications from Company in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing.
    • Compliance with Laws.  The parties will comply with all local, municipal, state, country, federal and other applicable governmental laws, orders, codes and regulations, including any applicable export compliance laws, in the performance of this Agreement.
    • Export Regulation. The Services may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Services to, or make the Services accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services available outside the US.
    • Modification.  Company reserves the right to change or modify this Agreement or any other Company policy, terms or conditions related to use of the Services at any time and at its sole discretion by posting revisions on the Website or within the Services.  Continued use of the Services following the posting of these changes or modifications will constitute your acknowledgment and agreement to such changes or modifications. 
  5. CHOICE OF LAW AND VENUE. This Agreement shall be exclusively governed by, construed, and enforced in accordance with, and subject to, the laws of the State of Texas. The sole, exclusive and mandatory venue for any disputes arising from or concerning this Agreement shall be in the state or federal courts located in Travis County, Texas. The parties hereby consent to trial without a jury on all matters litigated in connection with this Agreement.
  6. ATTORNEY FEES. If any legal action is necessary to enforce this Agreement, the prevailing party shall be entitled to reasonable attorney fees, costs and expenses in addition to any other relief to which it may be entitled.