1. Definitions; License Grant & Restrictions
“Client Customers” means, if Client is a marketing agency or similar service, the companies for whom Client uses the Platform Service(s);"Client Data" means any images, data, information or material that Client or Client’s Users, submit to Sticky or the Platform Service(s) in the course of using the Platform Service(s);
"Content" means the information, documents, reports, software, products and services contained in or made available via the Platform Service(s), other than Client Data; “Crowd” means the group of individual data subjects with whom Sticky has a relationship and that that agree ti participate in the applicable Experiment(s).
“Credits” means prepaid credit amounts that are available to apply to use of the Platform Services to upload Client Data and conduct Experiments for the selected Crowds.
1.3 Client Customers. Notwithstanding the terms of Sections 1.2 or 2 below, if Client is a marketing advertising agency or other service provider, then Client may download, copy, license, sell and distribute tangible copies of reports that include aggregated data generated through Client’s use of the Platform Service(s) to Client Customers, on the condition that Client disclaims all warranties and liabilities on behalf of Sticky or Client’s licensors.
2. Limitations on Use
Except as otherwise expressly permitted hereunder, Client shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Platform Service(s) or the Content in any way; (ii) modify or make derivative works based upon the Platform Service(s) or the Content; (iii) create Internet "links" to the Platform Service(s) or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Platform Service(s) in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Platform Service(s), or (c) copy any ideas, features, functions or graphics of the Platform Service(s). Additionally, Client shall not use the Platform Service(s) to: (i) upload or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights or Intellectual Property Rights; (ii) upload or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iii) interfere with or disrupt the integrity or performance of the Platform Service(s) or the data contained therein; or (iv) attempt to gain unauthorized access to the Platform Service(s) or its related systems or networks or to any Client Data belonging to another customer or to experiments that are not displayed in, or intended for, Client’s account. Client acknowledges and agrees that any reports generated through the Platform Service(s) will only include aggregated data of the Crowd that does not personally identify any individual.
3. Order Process
Each Order Form shall become incorporated herein by reference. If Client’s business practices require that a purchase order number be issued prior to payment of any Sticky invoices issued, then such purchase order number must be recorded within the Order Form.
Client’s execution and return of an Order Form to Sticky without designating a purchase order number shall be deemed an acknowledgement that no purchase order number is required for payment of invoices hereunder. Additionally, terms, provisions or conditions on any purchase order, acknowledgement, or other business form or writing that Client may use in connection with the provision of Platform Service(s) by Sticky are hereby rejected and will have no effect on the rights, duties or obligations of the parties hereunder, regardless of any failure of Sticky to object to such terms, provisions or conditions.
4. Client Data.
5. Intellectual Property Ownership
6. Client’s Responsibilities and Mutual Indemnities
6.1 Client Responsibilities. Client is responsible for all activity occurring under Client’s User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Client’s use of the Platform Service(s) and the Client Data, including those related to data privacy, international communications and the transmission of technical or personal data.
Client shall: (i) notify Sticky immediately of any unauthorized use of any password or account or any other known or suspected breach of security with respect to the Platform Service(s); (ii) report to Sticky immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by Client or Client’s Users; and (iii) not impersonate another Sticky user or provide false identity information to gain access to or use the Platform Service(s). Client agrees that Client will comply with all applicable laws and regulations in connection with Client’s use of the Platform Service(s), including but not limited to, all applicable privacy and export control laws and regulations.
(d) has not compromised or settled such third-party claim.
6.3 Sticky Indemnity. Sticky shall indemnify and hold Client, its subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) to the extent arising out of or in connection with a third party claim alleging that the Sticky Technology infringes a copyright, patent, or a trademark of, or has caused harm to the rights of, a third party, provided in any such case that Client (a) promptly gives notice of the claim to Sticky; (b) gives Sticky sole control of the defense and settlement of the claim (provided that Sticky may not settle such claim unless such settlement unconditionally releases Client of all liability and does not adversely affect Client's business); (c) provides to Sticky all available information and reasonable assistance; and (d) has not compromised or settled such third-party claim. If the Sticky Technology becomes, or in Sticky’s opinion is likely to become, the subject of an infringement claim, Sticky may, at its option and expense, either (a) procure for Client the right to continue using the Sticky Technology, (b) replace or modify the Sticky Technology so that it becomes non-infringing, or (c) accept termination of the licenses granted hereunder and give Client a refund for the fees paid by Client less a reasonable allowance for the period of time Client has used the Sticky Technology. Notwithstanding the foregoing, Sticky will have no obligation under this Section 6.3 or otherwise with respect to any infringement claim based upon (i) any use of the Sticky
7. Charges and Payment of Fees
7.1 Charges and Credits. Client will pay Sticky all fees and charges as set forth in the Order Form. Sticky’s current pricing policies and fees are set forth in an Order Form with Sticky or on the Sticky pricing page available at [INSERT URL]. Client may cancel orders for Platform Service(s) effective at the end of the current Initial Term or Renewal Term as set forth in Section 12.1. Client will not receive any refunds for fees paid except as set forth in Section 6.3. Purchased Credits for Experiments must be used and redeemed during the Initial Term or they will rollover to be used during the first thirty (30) days of the subsequent Renewal Term. If Credits are not used during the Initial Term or within the first thirty (30) days of the subsequent Renewal Term, Client will be deemed to waive rights to use and redeem such Credits. Credits will be redeemed in the order in which they were purchased (i.e. on a first in, first out basis where the first Credits purchased will be the first Credits redeemed).
7.2 Changes and Taxes. Sticky reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least thirty (30) days prior notice to Client, effective upon the next Renewal Term in accordance with Section 12, below. If Client does not cancel as described in 9 below, such changes shall become effective at the commencement of the Renewal Term. Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). Client is responsible for paying all Taxes associated with its purchases hereunder. If Sticky is required to collect any Taxes from Client, such Taxes will be added to the charges on Client’s credit card or added to Client’s invoice, as applicable.
7.3 Payments and Billing Information. Client authorizes Sticky to charge Client’s credit card for all Platform Service(s) set forth in the Order Form. Client consents to receiving electronic communications from Sticky. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Platform Service(s).
These electronic communications are part of Client’s relationship with Sticky and Client receives them as part of Client’s purchase of the Platform Service(s). Client agrees that any notices, agreements, disclosures or other communications that Sticky sends Client electronically will satisfy any legal communication requirements, including that such communications be in writing. Client agrees to provide Sticky with accurate billing and contact information, including Client’s legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact. Client agrees to update this information within thirty (30) days of any change to it. If the contact information Client has provided is false or fraudulent, Sticky reserves the right to terminate Client’s access to the
Platform Service(s) in addition to any other legal remedies.
8.1 Confidential Information. “Confidential Information” means any non public information that relates to the actual or anticipated business, research, or development of Client or Sticky and any proprietary information, trade secrets, and know how of Client or Sticky that are disclosed to either party or its agents, directly or indirectly, in writing, orally, or by inspection or observation of tangible items.
Confidential Information includes information that is defined as “Confidential Information” under any Order Form between the parties. Confidential Information also includes the confidential information of third parties that has been provided to Client or Sticky. Each party’s Confidential Information is the sole property of that party.
8.2 Exceptions. Confidential Information does not include any information that either party can demonstrate: (a) was publicly known and made generally available in the public domain before the other party disclosed the information, (b) became publicly known and made generally available, after disclosure by either party, through no wrongful action or inaction of either party or others who were under confidentiality obligations, (c) was in either party’s possession, without confidentiality restrictions, at the time of disclosure by either party, as shown by that party’s files and records, or (d) was independently developed without use of or reference to the Confidential Information.
9. Representations & Warranties
and Client has not falsely identified itself nor provided any false information to gain access to the Platform Service(s) and that Client’sbilling information is correct.
10. Disclaimer of Warranties
EXCEPT AS PROVIDED IN SECTION 9, STICKY AND ITS LICENSORS MAKE NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE PLATFORM SERVICE(S) OR ANY CONTENT. STICKY AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE PLATFORM SERVICE(S) WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE PLATFORM SERVICE(S) WILL MEET REQUIREMENTS OR EXPECTATIONS, OR (C) THE PLATFORM SERVICE(S) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ALL OTHER CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY STICKY AND ITS LICENSORS. CLIENT IS RESPONSIBLE FOR BACKING UP ITS OWN CLIENT DATA. STICKY'S PLATFORM SERVICE(S) MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. STICKY IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
11. Limitation of Liability
12. Term, Renewal and Termination
Initial Term or then-current Renewal Term. Client grants Sticky the right to use Client’s name, mark and logo on Sticky’s website, in Sticky marketing materials, and to identify Client as a Sticky Client.
15. Dispute Resolution and Binding Arbitration Provision
Definitions. As used in this Dispute Resolution and Binding Arbitration Provision (“Arbitration Provision”), the terms “Sticky,” “we,” “us,” and “our” refer to Sticky Inc., including its subsidiaries and agents; The word “Claims” means all claims, disputes, or controversies between Client and us of any nature or kind, whether pre-existing, present, or future, that arise from or relate to the Platform Service(s).
This includes but is not limited to disagreements about the validity, enforceability, or scope of this Arbitration Provision. Informal Efforts to Resolve Dispute. If a dispute arises between Client and Sticky, Client should first attempt to resolve it by contacting our Customer Service Center at 917-523-0007 or by sending the details of Client’s complaint, including Client’s contact information for a response, to the address or email address listed below. We will attempt in good faith to resolve all Claims submitted this way within fifteen (15) days of receipt.
Agreement to Arbitrate; Right to Opt Out. If informal efforts to resolve Claims fail or are not used, Client agrees that any and all Claims will be resolved exclusively by binding arbitration as described herein, except that: (i) Client may assert Claims in a small claims court in the United States if Client’s Claims meet the court’s jurisdictional requirements; and (ii) either party may pursue Claims and relief in a court of competent jurisdiction regarding the validity and/or infringement of a party’s intellectual property rights.
CLIENT’S DECISION TO OPT OUT OF THIS ARBITRATION PROVISION WILL HAVE NO ADVERSE EFFECT ON CLIENT’S RELATIONSHIP WITH US OR THE DELIVERY OF PLATFORM SERVICE(S) TO CLIENT BY US. IF CLIENT HAS PREVIOUSLY NOTIFIED US OF CLIENT’S DECISION TO OPT OUT OF ARBITRATION, CLIENT DOES NOT NEED TO DO SO AGAIN.
Arbitration Fees. The allocation and payment of all filing, administration and arbitrator fees will be governed by the American Arbitration Association (“AAA”) rules which limit the amount a consumer is required to pay. If the arbitrator determines that Client’s Claims are not frivolous applying the standards of the Federal Rules of Civil Procedure, we agree to reimburse Client the amount of all filing, administration and arbitrator fees Client is required to pay for the arbitration.
Arbitration Rules. The arbitration will be conducted by the “AAA” under its rules if Client is a resident of the United States; if Client’s use of the Platform Service(s) has been principally for personal or household use, the AAA’s Supplementary Procedures for Consumer-Related Disputes will also apply. If Client is a resident of a country other than the United States, the arbitration will be conducted by the AAA's International Centre for Dispute Resolution with venue in San Francisco, California, USA, under its rules for international arbitration. The Parties agree to submit to the personal jurisdiction of the U.S. federal court for the Northern District of California, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. In the event of a conflict or inconsistency between the applicable arbitration rules and this Arbitration Provision, this Arbitration Provision shall govern and control.
The arbitration will be conducted in the English language by a single arbitrator who is an attorney-at-law with experience in consumer and technology transactions and who is also a member of the AAA National Roster of Arbitrators. If the parties can't agree on a mutually acceptable arbitrator within fifteen (15) days after the arbitration is initiated, then the AAA will pick a neutral arbitrator who meets the qualifications. The AAA's rules are available at www.adr.org, or by calling 1-800-778-7879 from inside the United States or +1-212-484-4181 from outside the United States.
Initiating Arbitration. To begin an arbitration proceeding, Client must follow the procedures specified by the applicable JAMS rules as described on their website at www.adr.org .
Time Restriction. CLIENT MUST FILE A COMPLAINT WITH AAA OR A PERMITTED COURT WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A CLAIM, OR CLIENT WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED UPON SUCH EVENT, FACTS OR DISPUTE.
Arbitration Process. Because appearing in person for arbitration can be unduly burdensome in the circumstances, arbitration under this Arbitration Provision shall not require any personal appearance by the parties or witnesses unless mutually agreed. Either or both parties may participate by written submissions, telephone calls, or other means of remote communication as allowed by the arbitrator.
The arbitration proceedings will be conducted in the English language at a location designated by the AAA that is the most convenient The arbitration can only decide Claim(s) between Client and us, and may not consolidate or join the claims of other persons that may have similar claims. There shall be no pre-arbitration discovery except as provided for in the applicable AAA rules. The arbitrator will honor claims of privilege recognized by law and will take reasonable steps to protect customer account information and other confidential or proprietary information.
In conducting the arbitration proceeding, the arbitrator will apply the law of the State of California (without regard to its conflicts of law provisions) including U.S. federal law for matters covered by federal law (e.g. the Federal Arbitration Act). At the request of any party, the arbitrator shall provide a brief written explanation of the basis for the decision and award. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator’s decision will be final and binding on the parties except for any right to appeal under the AAA rules or the Federal Arbitration Act.
Enhanced Recovery. If the arbitrator rules in Client’s favor on the merits of any Claim brought against us and issues a damages award in Client’s favor that is greater in monetary value than our last written settlement offer made before written submissions are made to the arbitrator, then when the judgment is final we will pay Client the damage award judgment plus fifty percent (150%) up to US$1,000 over and above the damages award, plus Client’s reasonable attorneys’ fees for the arbitration proceeding.
Confidentiality. Client and we shall keep confidential any information exchanged during the arbitration as well as the decision of the arbitrator made with respect to any Claim(s) arbitrated under this Arbitration Provision and, with the exception of disclosure to Client’s or our attorneys, accountants, auditors, and other legal or financial advisors, neither party shall disclose such information or decision to any other person unless required to do so by law.
Continuing Obligation to Arbitrate; Severability. This Arbitration Provision shall survive termination of Client’s access to or use of any Platform Service(s) and related agreements. If any portion of this Arbitration Provision is deemed invalid or unenforceable at law, such invalid or unenforceable provision will be interpreted, construed or reformed to the extent required to make it valid and enforceable, and this shall not invalidate the remaining portions of this Arbitration Provision.
Sticky Customer Service Center Address:
600 California Street, 15th Floor
San Francisco, CA 94108