LOYAPPTY APPLICATION END USER LICENSE AGREEMENT

 

This Mobile Application End User License Agreement (“Agreement”) is a binding agreement between you (“End User” or “you”) and Ogangi Corporation (“Ogangi” or “Company”), collectively referred to as the Parties. This Agreement governs your use of Loyappty mobile application on the Clover App market platform (including all related documentation, the “Application”).

 

The Application is licensed, not sold, to you.

 

BY DOWNLOADING,INSTALLING OR USING THE APPLICATION, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL OR USE THE APPLICATION.

 

  1. LICENSE GRANT. Subject to the terms of this Agreement, Company grants you a limited, non-exclusive, non-sublicensable and nontransferable license to:

(a) Download, install, and use the Application on a device owned or otherwise controlled by you (“Mobile Device”) strictly in accordance with the Application’s documentation;  and

 

(b) Access, stream, download, and use on such Mobile Device the Content and Services (as defined in Section 5) made available in or otherwise accessible through the Application, strictly in accordance with this Agreement and the Terms of Use applicable to such Content and Services as set forth in Section 5.

 

  1. LICENSE RESTRICTIONS. Licensee shall not:

(a) Copy the Application, except as expressly permitted by this license;

 

(b) Modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application;

 

(c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;

 

(d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy thereof;

 

(e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time.

 

(f) use the Application in any unlawful manner or for any unlawful purpose or in any manner inconsistent with these Terms.

 

  1. RESERVATION OF RIGHTS. You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Company reserve] and shall retain its entire right, title, and interest in and to the Application, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
  1. COLLECTION AND USE OF YOUR INFORMATION. You acknowledge that when you download, install, or use the Application, Company may use automatic means (including, for example, cookies and web beacons) to collect information about your Mobile Device and about your use of the Application. You also may be required to provide certain information about yourself as a condition to downloading, installing, or using the Application or certain of its features or functionality, and the Application may provide you with opportunities to share information about yourself with others. All information we collect through or in connection with this Application is subject to our Privacy Policy [attached as Exhibit]. By downloading, installing, using, and providing information to or through this Application, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.
  1. CONTENT AND SERVICES. The Application allows you to post, link, store, share and otherwise make available certain information, text, graphics, videos, or other material (“Content”). The Application may provide you with access to Company’s website and products and services accessible thereon, and certain features, functionality, and content accessible on or through the Application (collectively, “Content and Services”)

5.1 You are responsible for the Content you post on or through the Application, including its legality, reliability, and appropriateness. By posting Content on or through the Application, You represent and warrant that:

 

(i) the you are allowed to own the Content and have the right to use it in accordance with this Agreement, and

 

(ii) the posting of your Content on or through the Application does not violate any privacy rights, publicity rights, copyrights, contract rights or any other rights of any person or entity.

 

We reserve the right to terminate the account in the event of any intellectual property right infringement.

 

5.2 You retain any and all rights in any Content you submit, post or display on or through the Application and you are responsible for protecting such rights. Ogangi assumes no responsibility or liability for Content you or any third-party posts on or through the Application.

5.3 By using the Application you agree and acknowledge that you grant Ogangi the right to use, modify, perform, display, reproduce, and distribute such Content on and through the Application.

 

5.4 Ogangi has the right but not the obligation to monitor and edit all Content provided by you. You may not distribute, modify, transmit, reuse, download, repost, copy, or use such Content, whether in whole or in part, for commercial purposes or for personal gain, without express advance written authorization from the Company.

 

5.5. Right to review campaigns. Ogangi may view, copy, and internally distribute Content from your Campaigns and account to create algorithms and programs (“Tools”) that help identify problem accounts and improve the application. Ogangi uses these Tools to identify End Users who violate the terms of this Agreement or any applicable law, and to study data internally to improve the Application and create a better solution to End Users.

 

  1. GEOGRAPHIC RESTRICTIONS. The Content and Services are based in the state of Florida in the United States and provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access all or some of the Content and Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Content and Services from outside the United States, you are responsible for compliance with local applicable laws.

 

  1. UPDATES. Company may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates“). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the internet either:

(a) the Application will automatically download and install all available Updates; or

 

(b) you may receive notice of or be prompted to download and install available Updates.

 

You shall promptly download and install all Updates and acknowledge and agree that the Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.

 

  1. THIRD-PARTY MATERIALS. The Application may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials”). You acknowledge and agree that Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.

 

  1. TERM AND TERMINATION.

 

(a) The term of the Agreement commences when you download/install the Application and will continue in effect until terminated by you or Company as set forth in this Section 9.

 

(b) You may terminate this Agreement by deleting the Application and all copies thereof from your Mobile

Device.

(c) Company may terminate this Agreement at any time without notice. In addition, this Agreement will

terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.

 

(d) Upon termination:

 

(i) all rights granted to you under this Agreement will also terminate; and

 

(ii) you must cease all use of the Application and delete all copies of the Application from your Mobile Device and account.

 

(e) Termination will not limit any of Company’s rights or remedies at law or in equity.

 

  1. DISCLAIMER OF WARRANTIES. THE APPLICATION IS PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

YOU MAY NOT MAKE ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, ON BEHALF OF OGANGI, ITS AFFILIATES OR THEIR RESPECTIVE THIRD-PARTY PROVIDERS TO ANY OTHER PARTY WITHOUT OGANGI’S EXPRESS PRIOR WRITTEN CONSENT.

 

  1. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR:

(A) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.

 

(B) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION.

 

THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE, OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

OGANGI’S AGGREGATE LIABILITY TO YOU AND ANY THIRD PARTY FOR ANY AND ALL CLAIMS RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL FEES PAID BY YOU TO OGANGI IN THE 6 MONTHS PRECEDING THE DATE THE LAST CLAIM ACCRUED.

 

  1. INDEMNIFICATION. You agree to indemnify, defend, and hold harmless Company and its officers, directors,

employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, arising from or relating to your use or misuse of the Application or your breach of this Agreement, including but not limited to the content you submit or make available through this Application.

 

  1. SUBSCRIPTION AND PAYMENT TERMS. The use of the Application is billed on a subscription basis (“Subscription”) You will be billed in advance on a recurring and periodic basis (“Billing Cycle”). Billing cycles will depend on the type of subscription plan You select when purchasing a Subscription and may be based on transactions carried out in respect of your Loyappty account.

At the end of each Billing Cycle, your Subscription will automatically renew under the same conditions unless either Party cancels it. You may cancel your Subscription renewal either through your online account management page or by contacting Ogangi Corporation customer support team.

 

A valid payment method is required to process the payment for your Subscription. By submitting such payment information, you automatically authorize Ogangi to charge all Subscription fees incurred through your account to any such payment instruments. In the event that automatic billing fails for any reason, Ogangi will issue an electronic invoice.

 

Fees not disputed in writing with reasonable detail as to the basis of such dispute within thirty (30) days of the invoice date will be deemed valid.

 

13.1. Fees. Ogangi, in its sole discretion and at any time, may modify the Subscription fees. Any Subscription fee change will become effective at the end of the then-current Billing Cycle. Ogangi will provide you with a 30-day prior notice of any change in Subscription fees. Your continued use of the Application after the Subscription fee change comes into effect constitutes your agreement to pay the modified Subscription fee amount.

 

13.2. Refunds. Ogangi offers a thirty (30) day money back guarantee in the event You decide to cancel your subscription within thirty (30) days after downloading/installing the Application. Ogangi Corporation  reserves the right to refuse charge-backs or refunds.

 

  1. INTELLECTUAL PROPERTY RIGHTS. Ogangi shall retain all Intellectual Property Rights in the Application, any deliverables and/or work product forming part of the Application, and in any software used to provide the Application. Except for the rights expressly granted in this Agreement, Ogangi does not grant any rights or licenses, whether express or implied.

Ogangi agrees to indemnify, defend and hold You harmless from and against all claims, allegations, causes of action, or demands, that are presented to or brought against You by a third party and any losses, and liabilities, arising out of such third party claims allegations, causes of action, or demands, in connection with or relating to a claim that the Application infringes a valid US copyright, patent, or other valid US intellectual property right of a third party.

 

Ogangi will have no liability for any infringement claim if caused in whole or in part as a result of:

(i) End User’s use of the Application other than in accordance with this Agreement and all applicable documentation or instructions provided by Ogangi; or

(ii) information or data supplied by the End User to Ogangi that is used in or with the Application; or

(iii) End User’s continued use of the Application after it was notified of actual or potential infringement from the End User use of the Application.

 

If the End User’s use of all or part of the Application is enjoined or otherwise similarly prohibited, or if Ogangi reasonably believes that there exists a threat of the same, then in addition to its indemnification obligations above, Ogangi shall have the right, in Ogangi’s sole discretion and at Ogangi’s expense, to (a) obtain for the End User the right to continue to use the Application; (b) replace the affected Application with a non-infringing product or application that are functionally equivalent to the original Application; or (c) modify the affected Application so that it becomes non-infringing but still functionality equivalent to the original Application.

 

  1. REWARDS PROGRAMS. As part of the Application, You will be able to create a rewards programs for your customers. You represent, warrant and covenant that you will honor any rewards program you offer, even after the termination of this Agreement. You further represent, warrant and covenant that the rewards programs will comply with all applicable laws and regulations.
  1. End User’s Customers/Members. To the extent You enroll any of your customers as a member of the rewards program or enable a customer to enroll and provide Loyappty with data and information, including a cellular or mobile number or other personally identifiable information, you represent and warrant that you have:

(a) informed such customer of Loyappty Terms of Use and Privacy Policy and that such customer may receive text messages or other communications from Loyappty, and

 

(b) obtained all necessary consents and rights required to share that information with Loyappty, so that Loyappty may communicate with such customer and otherwise use such data and/or information in any manner that complies with Ogangi’s Privacy Policy.

 

In connection with Your use of the Application and the administration of your rewards program(s), You shall comply with any applicable law and all policies provided by Ogangi  to you from time to time, including Ogangi Privacy Policy located at http://www.ogangi.com/privacy-policy/. You shall include an opt-out notice in any communications that you deliver to any customer and shall comply with any opt-out request made by the customer.

 

  1. COMPLIANCE WITH APPLICABLE LAW. You represent and warrant that your use of the Service will comply with any and all applicable laws and regulations.

17.1 Export Law. The Application 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 Application to, or make the Application 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 Application available outside the US.

 

  1. General.

(A) Force Majeure. With the exception of the End User’s obligation to pay amounts due and owing, Ogangi will not be responsible for delays or failures in performance resulting from acts of God, acts of civil or military authority, fire, flood, strikes, war, epidemics, pandemics, shortage of power, telecommunications or Internet service interruptions, third party networks or other acts or causes reasonably beyond the control of Ogangi. Ogangi  agrees to give You notice promptly following the occurrence of a force majeure event, and to use diligent efforts to re-commence performance as promptly as commercially practicable.

 

(B) Binding Agreement. This Agreement is binding upon the parties, their participating Affiliates, and their respective successors and permitted assigns.

 

(C) Assignment; Subcontracting. Neither this Agreement nor any part thereof or interest therein may be sold, assigned, transferred, pledged, or otherwise disposed of by the End User, by operation of law or otherwise, without Ogangi’s prior written consent. You agree that Ogangi may assign all or part of this Agreement and may subcontract or delegate the performance of its obligations and/or the exercise of its rights hereunder; provided that any such subcontractors shall be required to comply with all applicable terms and conditions of this Agreement, and Ogangi shall remain primarily liable for the performance of any such subcontractors.

 

(D) Severance. If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed and the remainder of the provisions of this Agreement shall continue in full force and effect as if this Agreement had been executed with the invalid, illegal or unenforceable provision eliminated.

 

(E) Waiver. The failure of either Party to enforce (or delay in enforcing) at any time for any period any one or more of the terms of this Agreement shall not be a waiver of such term(s) or of the right of such Party at any time subsequently to enforce all the terms of this Agreement.

(F) Publicity. Each Party shall be entitled to refer to or identify the other Party internally and/or publicly in any advertising or publicity releases or promotional or marketing material, including on its websites, without talking unfavourably of the other Party. Without prejudice to the foregoing, either Party shall be entitled to request publicity (e.g. joint press release; public announcements; listing on the other Party’s website) regarding the business relationship that is the subject of this Agreement, subject to the other Party’s written consent (such consent not to be unreasonably withheld or delayed.

 

(G) Entire Agreement. This Agreement and our Privacy Policy constitute the entire agreement between you and Company with respect to the Application and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Application.

 

Ogangi reserves the right to modify or replace these terms at any time. In the event of a material change, Company will provide a 30 days’ notice prior to such change being effective. Ogangi at its sole discretion will determine if the change is considered a material change. By continuing to access or use the Application after any change becomes effective, you agree to be bound by the revised terms. If you do not agree to the new terms, you are no longer authorized to use the Application.

 

  1. Governing Law. This Agreement will be governed by the substantive laws of the State of New York, without reference to provisions relating to conflict of laws. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Both parties agree to waive any right to have a jury participate in the resolution of any dispute or claim between the parties or any of their respective Affiliates arising under this Agreement.
  1. Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR

RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE

CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

 

  1. Communications. By creating an account on our website or Application, you agree to subscribe to newsletters, marketing or promotional materials and other information we may send. You may opt out of receiving any, or all, of these communications by following the unsubscribe link or instructions provided in the communication.