Customer hereby Orders from Clickwhiz Corp. An American corporation (hereinafter – the “Supplier”), a formation of a digital business card and a dispatching service of the Card (hereinafter – the “service”) for the term speciﬁed in the Order form (hereinafter – the “the service term”) against the fees provided on the Order form, all subject to the terms set out below, which are the agreed terms between the parties:
A) “The Application” – a mobile application designed to dispatch Supplier-created digital business cards, which must be downloaded to the Customer’s mobile device, and will allow the business card to be automatically dispatched through an SMS/MMS to the phone device of the caller to the Customer via the Customer’s mobile device and cellular services which the Customer is subscribed to.
B) ”The card” – a business card formed by the Supplier for the Customer based on the Formation Materials.
C) ”Delivery” – means the delivery of the Card through the application.
D) ”Formation Materials” means the materials transferred by the Customer to the Supplier for the formation of the business card, including personal details and images.
E) ”The Order” an order from the Customer to the Supplier for use card formation and the use of the application.
F) ”Device” – the Customer’s mobile telephone.
2. The Order
A) The signatory of the Order on behalf of the Customer declares that the Order has been signed by an authorized representative of the Customer to bind the Customer in the Order and its terms.
B) Whether the Customer makes this Orders for himself or for the beneﬁts of a third party, he hereby declares that he is authorized to do so and any other action under this Order on behalf of the person or the entity whose details appear on the Card and the one that the Application is download into his Device.
C) The Order is subject to the Supplier’s approval. The Supplier may approve the Order under changes on his behalf. The Customer is considered as conﬁrming the changes if he was notiﬁed and did not reject them by written notice to the Supplier within one working day from being notiﬁed.
D) The Customer undertakes to cooperate with the Supplier as much as necessary in order to modify the Formation Materials to the Application and to form the Card.
E) It is the responsibility of the Customer to own at his expense a Device operating on one of the latest Android operating system versions, and to connect the Device to a proper cellular network service including SMS/MMS and data services. All liabilities and expenses involved in purchasing the device and receiving the telecommunication services are the sole responsibility of the Customer.
F) The Customer is aware that other applications and changes in the Device settings may impair the Delivery.
G) It is clariﬁed that the Supplier cannot guarantee the Delivery nor the receipt of the Card by the recipient, and it does not have any control over the Customer’s Device, the cellular services, and the recipient’s device.
H) It is the Customer’s responsibility to renew the service term prior to its termination, by making payments to the Supplier in accordance with the Supplier updated tariffs.
A) Any change in the Card requested by the Customer must be submitted to the Supplier at least 5 business days before the Delivery begins.
B) The Customer will pay for the changes in the Card as speciﬁed in the Order or the latest Supplier pricelist, whichever is the latter.
4. The Card and the Formation Materials
A) The Customer warrants that all the Formation Materials, including web links, are the Customer genuine contact information, and that they and their Delivery through the Application and their receipt by the recipient do not violate any law, do not create misrepresentation, do not misleading, and they are not: threatening, defamatory or libelous, obscene, connected to any illegal activity, or may constitute grounds for criminal or civil proceedings, or constitute something which the Customer is not permitted to send, and that they comply with all laws pertaining to the display of minors images, as far as minors images appear in the Card.
B) The Customer undertakes: that he has all the permissions, licenses, consents in accordance with intellectual property laws and any other law relevant to use in the Formation Materials through the Application after taking into account all its performances and characteristics, and that he has paid all the payments required to make this use, or that he will make the payments on the designated dates agreed with the rights holders or anyone on their behalf.
C) The Customer declares that he eligible make the delivery and that the contact details within the Formation Materials are true with regard to the Device holder.
D) The Customer undertakes that the Formation Materials are in a good visual level and in the formats supported by the Application.
E) The Customer must make available to the Supplier all the Formation Materials at least 5 working days before the delivery begins. The Supplier may refrain from executing the Delivery or require changes in the Card, if in its opinion the Formation Materials are incompatible with the Supplier’s systems, or do not comply with its policy or are of a poor standard, or are incompatible with any other provision of this Order.
F) The use of the Formation Materials by the Supplier does not create any representation by the Supplier regarding the legality of the Formation Materials, their use for forming the card, and its Delivery and does not relieve the Customer from being solely responsible for any non-compliance with the law pertaining the Formation Materials and their use.
G) If the Customer fails to timely supply proper Formation Materials to the Supplier, it will not delay the beginning of the service term and will not constitute a ground for payment reduction or refund.
H) The Customer will not make any changes in the Formation Materials after they have been approved by the Supplier, without the prior approval of the Supplier.
I) The Supplier may provide the Customer with a management system regarding the formation of the Card, which may allow the Customer to make changes in the card. The Supplier may not carry out any activities that the management system allows the Customer to carry out by himself. The Supplier may condition the Delivery of the changed Card with its approval of changes.
J) The Supplier is not responsible for the compatibility of the card with any mobile screen type or operating system or SMS application.
A) The estimated term for the formation of the card is 5 business days from the date the Customer has delivered the Formation Materials to the Supplier unless the Supplier has postponed the formation date by notice to the Customer.
B) The Supplier shall not be liable for any delay in the performance of his duties as a result of a reason beyond his control,
C) The service term shall start on the date the Card was formed.
6. Termination of Service Term and Order Cancellation
A) The Supplier may, without the need to refund the Customer, terminate the service if he ﬁnds out that the Card does not comply with one or more of the provisions of these terms, or if the Customer has not transferred to the Supplier within 5 business days appropriate Formation Materials, or if he was required to do so by any authorized authority.
B) The Supplier may terminate the service term for his convenience subject to this Order with 30-day advance notice. In this case, the Customer will be refunded for the relative sum paid for the remaining period that was canceled.
C) The Customer declares that he has made the Order for his business needs only.
A) Payments will be made as speciﬁed in the Order.
B) The Customer shall bear all costs incurred by the Supplier for collection of the Customer’s payments which were not paid in due time.
C) The Supplier may require from the Customer collateral and deposits such as cash advances or credit card, to secure his payments.
D) Any taxes or levies or any other mandatory payments applicable to the Order shall be borne by the Customer and will be added to the tariffs set in the Order.
E) The Customer waives any right to deduct or offset or suspend or condition in respect of the payments to the Supplier.
F) In any case where the Customer disputes the invoice amount, he undertakes to pay the non-disputed amount, and the mere receipt of this amount by the Supplier does not constitute any waiver of the balance.
G) Failure to deliver the Formation Materials on the part of the Customer shall not constitute grounds for not making the payments to the Supplier.
H) Failure to carry out the Delivery will not constitute a cause for a refund.
I) The Supplier may update its prices at any time by notice to the Customer
8. Responsibility and Indemnity
A) The Customer assumes sole and full responsibility and liability for all ﬁnancial and legal risks and implications resulting from the use of the service.
B) The Customer shall indemnify, defend, and hold harmless the Supplier, from and against all costs, damages, losses, and expenses, including reasonable attorneys’ fees and other legal expenses, arising from a third-party claim due to or arising out of any use of the service or any other issue related to the above. The Supplier shall make reasonable efforts to notify the Customer of any such claim made against him. If Customer fails to assume such defense, then the Supplier may defend himself in any manner that he deems appropriate, and the Customer agrees to bear all our costs, including reasonable attorneys’ fees, that the Supplier incurs in effecting such defense in addition to any sum that the Supplier may be required to pay by reason of any settlement or judgment against him. The provisions of this Section, and the indemnity hereunder, shall survive these terms and any performance hereunder.
C) THE SERVICE IS PROVIDED ON AN “AS-IS” BASIS WITHOUT ANY WARRANTY. THE SUPPLIER DO NOT GUARANTY THAT IT SHALL WORK PERFECTLY, OR THAT IT WILL BE AVAILABLE AT ALL TIMES NOR THAT MALFUNCTION, DISTURBANCE, INTERRUPTION, LOSS OF INFORMATION, SHUTDOWNS WILL NOT OCCUR. THE SUPPLIER DO NOT GUARANTY THAT THE SERVICE SHALL BE AS YOU INTENDED IT TO BE. THE SUPPLIER DISCLAIMS ALL WARRANTIES AND/OR CONDITIONS, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER RELATING TO OR REFERENCED BY THE SITE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY OR QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY, TITLE, NON-INFRINGEMENT, LACK OF VIRUSES OR CORRESPONDENCE TO DESCRIPTION. THE SUPPLIER DO NOT RESPONSIBLE FOR ANY ACTIVITY THE CUSTOMER WITH THE SERVICE OR IN RELATION TO IT.
D) THE ENTIRE RISK ARISING OUT OF THE USE OF THE SERVICE, IS SOLELY THE CUSTOMER. IN NO EVENT SHALL WE OR ANY OF OUR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR AFFILIATES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION, OR OTHER PECUNIARY LOSS ARISING OUT OF THESE TERMS OR THE USE OF THE SERVICE OR INABILITY TO USE ANY PART OF SERVICE, OR IN CONNECTION WITH IT, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE EVEN IF THE SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING ELSE IN THESE TERMS OR POSTED ON THE SITE, THE MAXIMUM LIABILITY THAT THE SUPPLIER SHALL HAS IS LIMITED TO ANY AMOUNTS ACTUALLY PAID TO THE SUPPLIER BY THE CUSTOMER IN THE PAST 6 MONTH PRIOR TO THE FIRST EVENT FOR WHICH THE CUSTOMER IS DEMANDING. THE CUSTOMER ACKNOWLEDGES AND AGREES THAT THE LIMITATIONS OF LIABILITY, DISCLAIMERS OF WARRANTIES AND LIMITED REMEDIES SET FORTH HEREIN REPRESENT AN INSEPARABLE ALLOCATION OF RISK (INCLUDING, WITHOUT LIMITATION, IN THE EVENT OF A TOTAL AND FUNDAMENTAL BREACH OF THESE TERMS) THAT IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
E) The Customer is aware that the Delivery is affected by the operation of many different technological systems, most of which are not under the control of the Supplier, and that the Delivery may suffer from wireless interruptions and failure of the relevant cellular providers and mobile devices. In addition, the Customer is aware that the Supplier does not undertake that the Card may appear on any mobile device or any other device or in the proper manner, and it is also known to the Customer that the end-user devices can be conﬁgured so that they cannot receive the messages from this Device.
F) The Supplier may temporarily suspend the operation of the application for maintenance without any obligation to compensate the Customer.
G) The Customer undertakes that he has reviewed all the applicable laws regarding “spam” and ensures that the delivery of the messages is not a prohibited action under these laws.
9. Intellectual Property
A) All intellectual property rights in the service, the Application, and the Card except in the Formation Materials that the Customer has provided to the Supplier for incorporation on the Card are the Supplier’s sole property, including copyrights, patents and designs, names, logos and trademarks, whether registered or not, trade secrets and business and technological information including the algorithms, text, user interfaces, our logo, visual interfaces, photographs, trademarks, logos, sounds, artwork, structure, “look and feel”, the arrangement of the content, methods, systems, databases, applications, graphs, computer codes, designs and graphics (hereinafter: “Intellectual Property”) ).
B) The Customer is given permission to send the Card through the Application beyond which the Customer undertakes not to make any use of the Intellectual Property, including copy, distribute, display publicly, reproduce, market, sell, rent, edit, change the design or graphical interface of the application, create derivative works or to make any commercial use of the intellectual property or any part of it, either directly or through a third party, without the prior written consent of the Supplier.
C) The Customer is aware that the right of use granted to him in the application is personal, for the purposes of using the service only, and that when the service term ends, he must remove the Application from the devices he has installed the Application in them.
D) The Customer hereby gives the Supplier the permission to use its name and its logo as long the logo is part of the Formation Materials for the purpose of advertising or publishing the fact that the Customer is one of the Suppliers clients.
E) Customer’s obligations under this section shall remain in effect at all times.
A) The Supplier may collect, document, store and use every detail about the Customer and users of its services, including ﬁnancial charges, application usage patterns, and whether the information was obtained from the Customer and or from the User and from any other source (hereinafter: “Information”).
B) The Supplier may use the information, by itself or through third parties acting on its behalf for the purpose of performing statistical and marketing analysis and segmentation, for the development of services, advertising, marketing, and sales.
C) The Supplier may disclose the information, including information identifying the Customer to any third parties, without the permission of the Customer or its users, and to use it in the following cases: for the purpose of providing, managing, developing, protecting his or other rights, accounting, collecting and billing.
D) The Supplier may make solicitations alone or jointly with third parties to the Customer or users on its Services from time to time, in any means of communications as the Supplier may deem appropriate, in various marketing or commercial offers and promotions, including through the delivery of messages to the Device, email address and the like.
E) For the avoidance of any doubt it is clariﬁed that the provisions of this terms shall not derogate or exhaust the rights of the Supplier to collect, use or provide information under any law and that the provisions of this terms are to add to the provisions of any law.
F) For the avoidance of doubt, the above does not prevent the Supplier from responding to any instruction from a competent authority to provide and transmit information about the Customer to it.
A) Customer may not assign or transfer any of its rights or obligations under this Order, without the prior written consent of the Supplier.
B) Governing law of the Order will be the law of North Carolina, and the exclusive jurisdiction regarding will only the courts in Lincoln County, without derogating the Supplier right to seek relief in any other court, including outside North Carolina, in order to achieve injunctions or restraining Orders or other Order to enforce its rights.
D) No delay or failure by the Supplier to take action under these terms shall constitute any waiver by us of any provision of these terms. If any provision of these Terms is invalid or unenforceable under applicable law, it is, to that extent, deemed enforceable to the fullest extent possible (and severable in the event such provision is completely unenforceable) and the remaining provisions of these terms will continue in full force and effect.
E) Any claim under these Terms must be brought within one (1) year after the cause of action arises.
F) Any modiﬁcation or deviation from these terms shall be binding only if made in writing and signed by both parties.